本文结合了笔者承办的2023年度“全国破产经典案例”哈尔滨工大高新技术产业开发股份有限公司等五家公司破产重整案和近年来约50家退市公司重整的理论分析和实践经验，探讨退市公司独有的重整价值、重整路径及实务中的常见争议疑难问题，现采撷文章要点，抛砖引玉供各界同仁研究探讨。

一、引言

2024年4月，国务院出台《关于加强监管防范风险推动资本市场高质量发展的若干意见》，中国证券监督管理委员会出台《关于严格执行退市制度的意见》，证券交易所修订《上海证券交易所股票上市规则》《深圳证券交易所股票上市规则》等业务规则（以下合称“国九条及相关配套文件”）。“国九条及相关配套文件”旨在加强对市场的监管，倡导退市常态化。在2019年以前，每年退市数量几乎都在个位数；自2019年开始，上市公司退市逐渐进入加速状态，2020年退市数量达到20家，2021年退市数量达到23家，2022年退市数量达到50家，2023年退市数量达到46家，2024年度截至9月6日已经退市49家企业。上市公司退市后的出路作为整体性退市制度设计的一环，退市公司破产重整逐渐引发学界和市场的关注。

In an opinion issued on Sept. 20 by the United States Bankruptcy Court for the District of New Mexico, Judge David T. Thuma held that the Rooker-Feldman doctrine does not prevent a bankruptcy court from determining whether the automatic stay applies to pending state court litigation. See In re Shook, Case No. 24-10724-t7 (Bankr. N.M. Sept. 20, 2024) [ECF No. 54].

In Matter of Imperial Petroleum Recovery Corp., 84 F.4th 264 (5th Cir. 2023), the Fifth Circuit was asked to address whether 28 U.S.C. § 1961(a) – the federal statute providing for post-judgment interest – applies in adversary proceedings even though 28 U.S.C. § 1961(a) doesn’t explicitly refer to bankruptcy courts.

In earlier posts, the Red Zone has discussed the Supreme Court’s ruling in Siegel v. Fitzgerald, 142 S. Ct. 1770 (2022), which held that increased U.S.

In Matter of Texxon Petrochemicals, L.L.C., 67 F.4th 259 (5th Cir. 2023), the Fifth Circuit held that even if an appeal is equitably moot, the appellate court nonetheless has appellate jurisdiction to consider the merits of the appeal, without reaching the issue of equitable mootness.

Section 503(b)(9) Overview

On April 17, 2023, the Fifth Circuit Court of Appeals, in Matter of RE Palm Springs II, L.L.C., 2023 WL 2966520 (5th Cir. April 17, 2023), held that a senior lender who uses economic leverage and asserts its legal rights to squeeze out a junior lender remains a good faith purchaser entitled to declare an appeal moot based on a sale under section 363(m) of the Bankruptcy Code. Key to the Fifth Circuit’s opinion was the fact that the actions in question were disclosed to the bankruptcy court in advance of it making the section 363(m) finding.

Facts

In a previous blog post from June 2022, we discussed the Tenth Circuit’s post-Sigel decision in John Q. Hammons Fall 2006 LLC v. U.S. Trustee (In re John Q. Hammons Fall 2006 LLC), 15 F.4th 1011 (10th Cir. Oct. 5, 2021), which held that the government must pay a refund to a Chapter 11 debtor based on what the debtor would have paid over the same time were the case in a Bankruptcy Administrator district.

Two recent decisions from circuit courts of appeal – the Fifth and Ninth – have addressed a question that does not arise often: in a solvent-debtor chapter 11 case, is the debtor required to pay post-petition interest (commonly referred to as “pendency interest”) to unsecured creditors in order to render such claims unimpaired? And, if so, what is the applicable rate of interest to use? Additionally, a subsequent decision from the Second Circuit, while not ultimately reaching the issue, favorably cited the recent Fifth and Ninth Circuit decisions.

In a recent decision by the Tenth Circuit Bankruptcy Appellate Panel, the court held that a chapter 7 trustee could not sell an LLC membership interest pursuant to section 363 of the Bankruptcy Code because of a transfer restriction within the LLC operating agreement. Malloy v. Trak-1 Technology Inc.(In re Kramer), No. 21-005, 2022 WL 17176411 (B.A.P. 10th Cir. Nov. 23, 2022).