Not so long ago US Bankruptcy Judge Robert Drain of the Southern District of New York had his time in the barrel—pilloried in the media for approving releases to members of the Sackler family as part of a bankruptcy plan that would settle global opioid-related claims against Purdue Pharma, a bankruptcy debtor, and affiliated family members and other persons who were not bankruptcy debtors.
Chapter 11 plans are a form of stakeholder democracy. Elaborate rules govern voting and its consequences, and, in Section 1125(b), how acceptances—and rejections—may be solicited. Well, sort of.
Carna Group Pty Ltd v The Griffin Coal Mining Company (No 6) [2021] FCA 1214
In Carna Group Pty Ltd v The Griffin Coal Mining Company (No 6) [2021] FCA 1214, McKerracher J considered the meaning of “insolvent” within the context of a commercial contract and relevantly found that:
The Australian Sawmilling Company Pty Ltd (in liq) v Environment Protection Authority [2021] VSCA 294
Background
Anchorage Capital Master Offshore Ltd v Sparkes (No 3); Bank of Communications Co Ltd v Sparkes (No 2) [2021] NSWSC 1025
Chapter 11 plans of reorganization provide creditors with recoveries (cash or new securities) in exchange for a release and discharge of all claims against the debtor. Many Chapter 11 plans go a step further to release claims against related entities and persons who are not debtors in the case. Members of Congress have recently proposed legislation that could prohibit such nonconsensual third-party releases.
After a sluggish year in 2020 for mergers and acquisitions among hospitals and health systems, 2021 has shown renewed vigor and is poised for considerable transactional activity.
Badenoch Integrated Logging Pty Ltd v Bryant, in the matter of Gunns Limited (in liq) (receivers and managers appointed) [2021] FCAFC 64
The ability to assume or reject executory contracts is one of the primary tools used by debtors in a Chapter 11 reorganization. Where a debtor has a contract with a third party that is “executory”—meaning that ongoing performance obligations remain for both the debtor and the contract counterparty on the date of the bankruptcy filing—the debtor can choose to either assume or reject the contract under 11 USC § 365.
Subordination agreements are generally enforced in accordance with applicable non-bankruptcy law in bankruptcy cases. The decision in In re Fencepost Productions, Inc., No. 19-41542, 2021 WL 1259691 (Bankr. D. Kan. Mar. 31, 2021) recognizes limits to this rule. While the subject subordination agreements were generally enforceable, the assignment of Chapter 11 voting rights in such agreements was not.