In vielen Branchen kann die Lieferkette eine Vielzahl von Unternehmen und Jurisdiktionen umfassen. Im derzeitigen Wirtschaftsklima ist es nicht ungewöhnlich, dass einzelne Lieferanten innerhalb dieser Lieferkette in finanzielle   Schwierigkeiten   geraten   oder ein Insolvenzverfahren beantragen.

In many industries, the supply chain can involve multiple suppliers and jurisdictions. In the current economic climate, it is not unusual for a supplier within the supply chain to encounter financial distress or even to enter into formal insolvency proceedings. This can have a significant impact on a company if its business depends on a distressed supplier and an alternative or additional supplier cannot be found (and production cannot be brought in house) or an alternative sourcing is not possible for other reasons, like part/raw material approval process, testing, customs etc.

With each extension, the scope of the suspension of the obligation to file for insolvency which was first introduced in March 2020 became more and more limited.

Ausgangssituation

Before soliciting votes on its bankruptcy plan, a chapter 11 debtor that has filed for bankruptcy typically must obtain court approval of its disclosure statement. As part of the disclosure-statement approval process, interested parties are afforded the opportunity to object. For example, a party may object on the grounds that the disclosure statement lacks sufficient information about the debtor. Sometimes, however, a party objects to the disclosure statement because the chapter 11 plan described by the statement cannot be confirmed.

The ability of a bankruptcy court to reorder the priority of claims or interests by means of equitable subordination or recharacterization of debt as equity is generally recognized. Even so, the Bankruptcy Code itself expressly authorizes only the former of these two remedies. Although common law uniformly acknowledges the power of a court to recast a claim asserted by a creditor as an equity interest in an appropriate case, the Bankruptcy Code is silent upon the availability of the remedy in a bankruptcy case.

In Stern v. Marshall, 131 S. Ct. 2594 (2011), the estate of Vickie Lynn Marshall, a.k.a. Anna Nicole Smith, lost by a 5-4 margin Round 2 of its Supreme Court bout with the estate of E. Pierce Marshall in a contest over Vickie's rights to a portion of the fortune of her late husband, billionaire J. Howard Marshall II. The dollar figures in dispute, amounting to more than $400 million, and the celebrity status of the original (and now deceased) litigants may grab headlines.

Over the past five years, courts have issued rulings of potential concern to buyers of distressed debt. Courts have addressed, among other things, “loan to own” acquisition strategies resulting in vote designation; equitable subordination, disallowance, and other lender liability exposure based upon the claim seller’s misconduct; disclosure requirements for ad hoc committees of debtholders; the adequacy of standardized claims-trading agreements; and claim-filing requirements in the era of computerized records.

Rehabilitating a debtor’s business and maximizing the value of its estate for the benefit of its various stakeholders through the confirmation of a chapter 11 plan is the ultimate goal in most chapter 11 cases. Achievement of that goal, however, typically requires resolution of disagreements among various parties in interest regarding the composition of the chapter 11 plan and the form and manner of the distributions to be provided thereunder.