When Judge Learned Hand coined the phrase “indubitable equivalence,” he set an extremely high bar for confirming plans of reorganization over the objections of impaired secured creditors. Accordingly, when Congress codified the “indubitable equivalent” concept in section 1129(b)(2)(A)(iii) of the Bankruptcy Code1 we believe that it intended for courts to apply the provision strictly and only confirm indubitable equivalent plans under indisputable circumstances. Yet, a review of the relevant case law might lead one to conclude that section 1129(b)(2)(A)(iii) is a lenient, catch-all provision for debtors to use when the specified methods for confirming nonconsensual plans are not available or advantageous to them. Our thesis is that some courts have too easily found indubitable equivalence as a path to confirmation in ways that are inconsistent with the plain meaning of the statute and the clear intent of Congress to protect the interests of secured creditors.
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