庭外债务重组，是指对陷入债务困境的债务人在避免完全的司法干预情形下，依靠企业自身与债权人、投资人进行谈判，最大限度地减少成本，改变其资产和债务构成或结构的一种债权债务整体调整活动，这种调整活动着眼于企业整体性系统调整，包括对债务人的业务重组、资产重组、管理重组、债务重组等。其中，业务重组主要围绕主业经营，不断提升巩固核心竞争力，进一步挖掘主业业务资产价值；资产重组主要聚焦企业主营业务，对非主业资产实施瘦身，最大限度实现企业资产重组价值的释放；管理重组主要优化企业治理结构，调整决策和监督职权范围，实现各方对资产处置和经营发展的共同管控，缓释信任风险；债务重组主要在管理重组、资产重组、业务重组的基础上，可以充分运用延期、降息、以物抵债、以股抵债等债务重组工具，实现企业整体债务风险化解。
We hear a lot these days about bankruptcy venue abuse via corporate-entity manipulation shortly before bankruptcy filing.
Here’s the latest opinion on that subject—which allows Debtor’s choice of venue to stand, based on a newly-created entity:
Is an involuntary bankruptcy, filed by an owner/creditor of the Debtor, filed in good faith or in bad faith?
That’s the question before the U.S. Supreme Court on which it denied certiorari on October 30, 2023 (Wortley v. Juranitch, Case No. 23-211).
Here’s the gist of the case.
The U.S. Trustee is on a crusade to eradicate every type of third-party release from all Chapter 11 bankruptcy plans—no matter what the facts or circumstances might be.
It’s a policy based on the idea that, if the Bankruptcy Code doesn’t specifically and explicitly authorize something, then that something cannot be done . . . ever . . . under any circumstances . . . no matter what . . . period . . . end of story.
We now have another manifestation of that bright-line and unyielding position. Fortunately, the Bankruptcy Court rejects the U.S. Trustee’s objection.
A bankruptcy court has jurisdiction to dismiss a legal malpractice claim of non-debtor plaintiffs against non-debtor attorneys.
That’s the ruling in Murray v. Willkie Farr & Gallagher LLP (In re Murray Energy Holdings Co.), Adv. Pro. No. 22-2007, Southern Ohio Bankruptcy Court (decided October 5, 2023, Doc. 89)—appeal is pending.
Summary of Issue and Ruling
Bankruptcy Court denies a party’s request to enforce arbitration of a legal malpractice claim—and then dismisses that malpractice claim for failure to state a claim.
The opinion is Murray v. Willkie Farr & Gallagher LLP (In re Murray Energy Holdings Co.), Adv. Pro. No. 22-2007, Southern Ohio Bankruptcy Court (decided October 5, 2023, Doc. 89)—appeal is pending.
Context
This ideal is floating around:
- upon removal of a Subchapter V debtor from possession, for fraud or other cause,
- the Subchapter V trustee has no expanded right, power, function or duty beyond operating debtor’s business (the “Ideal”).
This Ideal is both:
- contrary to unambiguous language of the Bankruptcy Code, as a matter of law; and
- in Never-Never Land, as a matter of practice.
I’ll try to explain.
This is a truism:
A study on using round-number offers and precise-number offers in negotiations reaches these two conclusions:
Here’s the latest opinion on a controversial question: In re Franco’s Paving LLC, Case No. 23-20069, Southern Texas Bankruptcy Court, (decided 10/5/2023; Doc. 74).
The Question & Answer
Voter apathy is a problem in Subchapter V cases. That apathy is in the form of creditors failing or refusing to vote on a Subchapter V plan. The In re Franco’s opinion addresses this apathy problem head-on.
Recent expressions of concern about courts mandating mediation reminded me of a mandated mediation process that worked well: the City of Detroit bankruptcy.
An illustration of the success of mandated mediation in the Detroit case is this line:
The Bankruptcy Judge“put an end to the public bickering over the water deal by ordering the parties into confidential mediation.”