In a recent opinion – In re Heritage Home Group LLC, et al., Case No. 18-11736 (KG), 2018 WL 4684802 (Bankr. D. Del. Sept. 27, 2018) – the Delaware Bankruptcy Court addressed the longstanding issue of which professional persons must be retained under section 327(a) of the Bankruptcy Code.

It is an unfortunate reality that your business can be severely affected when one of your customers become insolvent. It can be financially crippling on your business and emotionally stressful for you. Although you cannot control the financial viability of your customers, there are a few strategies you can implement to minimise your exposure when your customer is in financial distress.

In the beginning

It is important at the start of a new business relationship that you implement some strategies which can minimise your exposure if your customer is insolvent:

A fundamental tenet of chapter 11 bankruptcies is the absolute priority rule. Initially a judge-created doctrine, the absolute priority rule was partially codified in section 1129(b)(2)(B)(ii) of the Bankruptcy Code. Under section 1129, plans must be “fair and equitable” in order to be confirmed.

Background: Professionals’ Fees in Chapter 11 cases