The Year in Bankruptcy: 2009

The penultimate year in the first decade of the second millennium was one for the ages, or at least most people hope so. Almost nobody would choose to relive the tumultuous, teeth-grinding events of 2009 any time soon. 2009 saw what was (hopefully) the worst of the "Great Recession" that gripped most of the world beginning in the fall of 2008. In its waning months, 2009 also nurtured the green shoots of a recovery that, plagued by indicators (lagging or otherwise) such as enduring double-digit unemployment, high fuel costs, high mortgage foreclosure rates, tight credit markets, low interest rates, and low residential and commercial real estate values, is admittedly still fragile. As of the end of 2009, 7 million Americans had lost their jobs and 3.7 million homes had been foreclosed upon since the beginning of the recession. U.S. household net worth has contracted nearly 20 percent since the middle of 2008 - an epic $12 trillion.

After all the "worst," "lowest," "least," "direst," and "biggest" designations awarded to the cataclysmic events of 2008, the catalog of original superlatives for the business and financial developments of 2009 is comparatively slim. Even so, 2009 was far from short on exceptional, notable, groundbreaking, and even historic events, particularly in the areas of commercial bankruptcy and restructuring.

2009 will be remembered as the year that terms such as "TARP," "TALF," "cash for clunkers," "Ponzi scheme," "too big to fail," and "stress tests" became ubiquitous (if not original) parts of the American financial lexicon. It will also enter the history books as the year that two of Detroit's Big 3 automakers motored through bankruptcy with the benefit of billions in taxpayer dollars, the year with the most unemployed Americans in over a quarter century, and the year that the U.S. deficit, as a percentage of U.S. economic output, surged to $1.42 trillion, the largest since World War II. 2009 will also enter the annals of U.S. history as the year that disgraced financier Bernard Madoff was sentenced to 150 years in prison for orchestrating the largest Ponzi scheme in history, a crime described by the sentencing judge as "extraordinarily evil" due to the billions bilked from thousands of investors. Standard & Poor's reported that global corporate bond defaults totaled 265 in 2009, with junk-rated companies comprising almost 90 percent of those that defaulted. The number of defaults was the highest annual total since S&P began tracking them in 1981, breaking the previous record of 229 in 2001. The U.S. led the world with 193 of those defaults, roughly twice the number recorded for 2008.

The nation's biggest banks began repaying their bailout money in 2009, although cynical observers have suggested that banks were motivated less by eagerness to repay American taxpayers than a desire to avoid restrictions on executive pay for TARP recipients. However, the largest players in the U.S. mortgage debt market remained on government life support throughout 2009 and are likely to stay there for some time. Fannie Mae and Freddie Mac, which buy and resell mortgages, used $112 billion in TARP money in 2009. Moreover, the Obama administration pledged on Christmas Eve to provide unlimited financial assistance to the mortgage giants, paving the way for the government to exceed the current $400 billion cap on emergency aid without seeking permission from a bailout-weary Congress. GMAC, which finances auto sales but also guarantees mortgage debt, has already drawn $13.4 billion in TARP money but needs at least $5.6 billion more, according to the government's "stress test" results. Insurance conglomerate AIG, which also guarantees billions in mortgage paper, is similarly in dire financial straits, having recently drawn $2 billion from a special $30 billion government facility created in the spring of 2009 after a $40 billion infusion of taxpayer money proved to be inadequate. The ongoing $180 billion AIG fiasco continued to figure prominently in headlines in 2010, after news outlets reported that the Federal Reserve Bank of New York advised the troubled insurer at the end of 2008 to withhold details of its bailout deal from the public.

All things considered, U.S. stock markets had a reasonably good year. After posting its worst January in percentage terms on record and plunging to 6,547.05 on March 9 - less than half its peak only 17 months earlier - the Dow Jones Industrial Average regained some lost ground in 2009. The Dow closed above the 10,000 mark for the first time in more than a year on October 14, 2009, and closed out the year at 10,428 with an 18.8 percent gain for 2009, the biggest annual percentage gain in six years, although it was still down 26.4 percent from its all-time record set in October 2007.

210 public companies (i.e., companies with publicly traded stock or debt) filed for chapter 7 or chapter 11 bankruptcy protection in 2009, compared to 138 in 2008. This figure falls short of the record 263 filings in 2001 but nevertheless represents the most public-company bankruptcy filings since 2002, when there were 220. According to annual reports filed with the Securities and Exchange Commission, the aggregate prebankruptcy asset pool for the 210 public filings in 2009 was valued at nearly $600 billion, compared to the $1.2 trillion in assets placed under bankruptcy administration in the previous year (thanks, in large part, to Lehman Brothers, which tallied an eye-popping $691 billion in assets, the largest chapter 11 filing of all time). Year-end statistics released by Automated Access to Court Electronic Records, which is part of Jupiter eSources LLC, indicate that U.S. business bankruptcies rose 38 percent last year, with 89,402 chapter 7 and chapter 11 filings by businesses in 2009, compared to 64,584 in 2008. The volume of business filings set a new record in the bankruptcy era postdating enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA").

There were 55 names added to the "billion-dollar bankruptcy club" in 2009, more than double the number of initiates in 2008. Notable among them (including companies that are featured below in the Top 10 List for 2009) were Big 3 automakers GM and Chrysler; myriad bank-holding companies and mortgage lenders (continuing a trend established in 2008), including small to mid-sized business financier CIT Group; chemicals titan Lyondell Chemical; poultry products giant Pilgrim's Pride; gaming and entertainment company Station Casinos; hotelier Extended Stay; Reader's Digest, a fixture in U.S. households for more than three-quarters of a century; and door manufacturer Masonite, just to name a handful. Prominent names in the bankruptcy headlines of 2009 that did not crack the billion-dollar threshold included media conglomerate Sun-Times Media, which once owned the Chicago Cubs; newspaper and web-site publisher the Journal Register Company; clothing retailer Eddie Bauer; and elevator-music pioneer Muzak. Few industries were spared bankruptcy's trial by fire in 2009.

140 federally insured banks failed in 2009, straining to the breaking point the insurance fund administered by the besieged Federal Deposit Insurance Corporation, which projected in September 2009 that bank failures would cost the deposit insurance fund about $100 billion in the next four years. For the first time since it was formed in 1933, the FDIC was forced to demand prepayment of insurance premiums by banks. Although the number of bank failures quintupled the 25 failures of 2008, they were nowhere near the record volume experienced during the savings-and-loan crisis in 1989, when 534 banks closed their doors.

Private companies fared no better in 2009. For example, according to peHUB, an interactive forum for the private equity community, private equity-backed bankruptcies (excluding minority stake and hedge fund-backed bankruptcies) already numbered 46 only halfway through 2009, on a pace to double the 49 leveraged buyout-backed chapter 11 cases filed in all of 2008. The blistering pace abated, however, as seriously overleveraged companies found a way to stay out of the bankruptcy courts, chiefly by prevailing on lenders to extend debt maturities or face the prospect of a total meltdown and evaporation of asset and collateral values. peHUB placed the total number of private equity bankruptcies for all of 2009 at 74, while other watchdogs reported the total number to be above 100. The ranks of the fallen in 2009 included greeting-card company Recycled Paper Greetings, media companies Source Interlink and Bluewater Broadcasting, mattress maker Simmons Bedding, newspaper publisher the Star Tribune, jewelry retailer Fortunoff, and home ventilation products manufacturer Nortek.

More remarkable than the volume of business bankruptcy filings in 2009 was (renewed) evidence of the marked paradigm shift in chapter 11 cases, exemplified by the lightning-fast bankruptcy asset sales in the Chrysler and GM cases in 2009 and the Lehman chapter 11 case in 2008. The chapter 11 landscape is changing. Largely gone are the once typical chapter 11 cases of uncertain duration with a stable and reorganization-committed creditor base, an ample supply of inexpensive debtor-in-possession and/or exit financing, and an adequate "breathing spell" from creditors to devise a chapter 11 plan and to decide whether to assume or reject executory contracts and unexpired leases.

Those halcyon days have been supplanted by bankruptcy "quick fixes" involving prepackaged or prenegotiated chapter 11 plans and rapid-fire asset sales under section 363(b) of the Bankruptcy Code, a model that has been much criticized as antithetical to chapter 11's policies of adequate disclosure, absolute priority, and fundamental fairness. Overleveraged companies are burdened with multiple layers of senior, mezzanine, and second- (or even third-) tier debt. DIP and exit financing are hard to find, and loans, when available, are very expensive. Prebankruptcy creditors are more apt than ever before to cut their losses by selling their claims in the robust, multibillion market for distressed debt. The remaining creditor constituency is motivated more by the desire for profit than a commitment to develop an enduring and mutually beneficial relationship with a viable enterprise going forward. Among other things, this means that chapter 11 cases have become more contentious, and companies have fewer qualms about proposing chapter 11 plans that distribute little or no value to unsecured creditors.

Much abbreviated "drop dead" dates have constricted the time frames for a chapter 11 debtor to propose and confirm a chapter 11 plan and to determine which of its contracts and leases are worth retaining. New categories of administrative claims have made it more difficult for debtors to muster the financial means necessary to confirm a plan of reorganization. Likewise, enhanced protections for utilities and new ERISA "termination premiums" triggered by termination of a chapter 11 debtor's pension plans have made bankruptcy a more expensive proposition. Special protections in the Bankruptcy Code for financial contracts that were significantly augmented in 2005 mean that swap and repurchase agreements, forward contracts, and other types of financial contracts operate notwithstanding a bankruptcy filing. Because the automatic stay does not prevent these contracts from being liquidated or netted out, billions of dollars can be (and in many cases were) siphoned overnight from a contract party despite its filing for bankruptcy protection.

Bankruptcy professionals, commentators, and lawmakers have been taking a hard look at the current state of chapter 11, which has evolved considerably from its infancy in 1978. Some have expressed the view that chapter 11's "one size fits all" mentality is outdated or that the many changes made to the Bankruptcy Code by special interests have emasculated chapter 11 as a vehicle for reorganizing companies, saving jobs, and preserving value for creditors. For example, the Obama administration proposed legislation in December 2009 that would create a "resolution authority" and a "systemic resolution fund" to deal with bank-holding companies and other nonbank financial institutions that pose "systemic risk." A competing bill introduced in the U.S. House of Representatives in 2009 - the Consumer Protection and Regulatory Enhancement Act of 2009, H.R. 3310 - proposes to add a new chapter to the Bankruptcy Code (chapter 14) to deal with the adjustment of debts of nonbank financial institutions that are deemed "too big to fail." The legislation was proposed in response to a widespread perception that the U.S. government fumbled the ball in dealing (or not dealing) with the collapses of Lehman Brothers, Bear Stearns, and AIG, which fueled a nationwide financial panic. The debate concerning this controversial issue will doubtless endure for some time.

Where Do We Go From Here?

Prognostication is always an iffy proposition when it comes to developments in business bankruptcy and reorganization. Even so, given trends established or persisting in 2009, such as the continuing weakness in consumer demand, ballooning health-care and employee legacy costs, high fuel prices, double-digit unemployment, and dubious prospects for a "jobless recovery," it is not difficult to predict that the waves of commercial bankruptcies will continue well into 2010 and probably beyond. Industries especially susceptible to bankruptcy risk continue to be media, automotive (despite the sale of 700,000 (mostly Japanese) new vehicles as part of the "cash for clunkers" program), airline, home construction, retail, mortgage lending, entertainment and, due to chronic high vacancy and default rates, commercial real estate. Prepackaged chapter 11 cases, section 363 asset sales, and chapter 7 liquidations are likely to continue to predominate in 2010.

Highlights of 2009

Top 10 Bankruptcies of 2009

Unlike 2008, when the chapter 11 case of Lehman Brothers Holdings Inc. far outstripped the "competition" for the largest public bankruptcy filing of the year (and in U.S. history, for that matter) with an awe-inspiring $691 billion in assets, the contenders vying for primacy on the Top 10 List for 2009 were grouped at least roughly in the same galaxy. Then again, the 55 public billion-dollar bankruptcy cases filed in 2009 more than doubled the 24 cases commenced in 2008. Continuing a trend initiated at the beginning of the recession in the late fall of 2008, most of the top bankruptcy filings in 2009 featured companies involved in the banking and/or financial services sectors. The remainder of the spots on the Top 10 List went to two automobile manufacturers, a real estate investment trust, and a chemical manufacturer.

Grabbing the pole position on the Top 10 List for 2009 was General Motors Corporation ("GM"), which filed a prenegotiated chapter 11 case on June 1 in New York together with three of its domestic subsidiaries: Chevrolet-Saturn of Harlem Inc., Saturn LLC, and Saturn Distribution Corporation. None of GM's operations outside the U.S. was included in the filings. Founded in 1908, Detroit-based GM manufactured cars and trucks in 34 countries, employed 243,000 people in every major region of the world, and sold and serviced vehicles in approximately 140 countries. In 2008, GM sold 8.35 million cars and trucks globally under the Buick, Cadillac, Chevrolet, GMC, GM Daewoo, Holden, Hummer, Opel, Pontiac, Saab, Saturn, Vauxhall, and Wuling brands. GM's largest national market is the U.S., followed by China, Brazil, the U.K., Canada, Russia, and Germany.

With $91 billion in assets, GM's chapter 11 case was the fourth-largest bankruptcy in U.S. history, after Lehman Brothers Holdings Inc. ($691 billion); Washington Mutual, Inc. ($328 billion); and WorldCom, Inc. ($104 billion). The world's largest automaker until its 77-year reign was ended by Toyota Motor Corporation in 2008, GM surpassed Chrysler LLC (see below) as the largest U.S. manufacturer to file for bankruptcy. The filing triggered credit-default swaps protecting nearly $3.1 billion of GM debt, in the largest settlement of derivatives since the collapse of Lehman Brothers.

When it sought bankruptcy protection in June, GM planned to launch a new company in 60 to 90 days, armed with vehicles from its Cadillac, Chevrolet, Buick, and GMC units for the U.S. market. The sale transaction closed on July 10, paving the way for the "new" GM to emerge from bankruptcy only 40 days after it filed for chapter 11 protection. A 60.1 percent interest in the new company is now owned by U.S. taxpayers, with the remainder owned by the Canadian government and a health-care trust for the United Automobile Workers union. During the case, GM reduced its liabilities from $176 billion to $48 billion, sold or liquidated unprofitable brands such as Saturn and Hummer, reduced its workforce from 91,000 to 68,500 workers, cut its U.S. manufacturing sites by 13 to 34, and jettisoned 2,600 dealers. The restructuring was financed by American taxpayers with $33 billion in debtor-in-possession financing.

The No. 2 spot on the Top 10 List for 2009 went to the CIT Group Inc. ("CIT"), which filed for chapter 11 protection on November 1 in New York with $80.4 billion in assets. CIT's Utah bank, which holds nearly $10 billion in assets, was not part of the bankruptcy filing. CIT's bankruptcy filing was the fifth-largest in U.S. history and the largest prepackaged chapter 11 case ever. A New York, New York-based, 101-year-old company with 4,995 employees, CIT is a leading provider of financing to small businesses and middle-market companies, principally through factoring, a key element in the day-to-day financing of the retail industry. It also plays a key role in shipping goods, as the third-largest lessor of rail cars in the U.S. and the world's third-largest lessor of aircraft.

CIT received $2.3 billion as part of the TARP in December 2008. Those funds helped stabilize the company, but the giant lender was undone due to billions in bad student loans and subprime mortgage loans. CIT's tenure in bankruptcy was brief—the bankruptcy court confirmed CIT's chapter 11 plan on December 8, 2009. The plan reduces CIT's debt by more than $10 billion and gives unsecured noteholders new debt instruments valued at 70 percent of their prebankruptcy claims, plus new common stock. The plan extinguishes preferred stock received by the U.S. Treasury Department in exchange for TARP funding, representing the first (but likely not the last) time that taxpayer funds were lost since the federal government implemented its economic stimulus package to help pull the country out of the worst downturn since the Great Depression. One of the largest financial victims of the credit crisis, CIT was the first of the ill-fated financial companies to emerge from bankruptcy protection; Lehman Brothers, Washington Mutual, IndyMac, and other financial companies were unable to weather the storm.

The landmark chapter 11 cases of Chrysler LLC and 24 affiliates, the smallest of Detroit's Big 3, motored into position No. 3 on 2009's Top 10 List. Chrysler was the first U.S. automaker ever to file for bankruptcy when it sought chapter 11 protection on April 30 in New York, listing $39 billion in assets and $55 billion in liabilities. Its bankruptcy filing was the sixth largest in U.S. history.

An Auburn Hills, Michigan-based company founded in 1925 with 39,000 employees at the time of the filing, Chrysler manufactures, assembles, and sells cars, trucks, and related automotive parts and accessories primarily in the U.S., Canada, and Mexico. From 1998 to 2007, Chrysler and its subsidiaries were part of the German-based DaimlerChrysler AG. In August 2007, DaimlerChrysler sold 80.1 percent of its stake in Chrysler to the private equity firm Cerberus Capital Management, L.P., with Cerberus acquiring the remainder of Chrysler on April 27, 2009 (three days before Chrysler's bankruptcy filing).

Chrysler filed for chapter 11 protection with the stated intention of consummating a sale of substantially all of its assets under section 363(b) of the Bankruptcy Code to a consortium led by Italian automaker Fiat SpA. At that time, the transaction was unprecedented in terms of its scope and asset value. On May 1, 2009, Chrysler temporarily shut down all of its 22 U.S. auto plants as part of its chapter 11 restructuring and proposed sale to Fiat. The New York bankruptcy court approved the sale on June 1—just over one month after Chrysler filed for bankruptcy—igniting a pitched and historic battle in the courts that Chrysler ultimately waged all the way to the U.S. Supreme Court.

Chrysler consummated the sale of substantially all of its assets to the Fiat-led "New Chrysler" (Chrysler Group LLC) on June 10, providing the opportunity for its iconic brands and U.S. operations to survive. During its bankruptcy case, Chrysler eliminated 789 dealerships and significantly reduced both its debts and employee-related expenses. Chrysler's bankruptcy and successful rapid-fire asset-sale strategy paved the way for GM to file for chapter 11 one month afterward and demonstrated that a bankruptcy filing is not a death sentence for U.S. automakers. White House involvement in the bankruptcy case, including President Barack Obama's announcement of the filing and U.S. Treasury financing, together with a statement of support for Chrysler, was unprecedented at the time. With the chapter 11 cases of Chrysler and GM, Ford Motor Company stands alone as the only member of Detroit's Big 3 to decline a taxpayer-funded bailout and bankruptcy filing to wash clean its assets and rid itself of redundant dealerships, outmoded brands, and crippling employee legacy costs.

The fourth-largest public bankruptcy case of 2009 was filed by Santa Fe, New Mexico-based Thornburg Mortgage, Inc., which filed for chapter 11 protection on May 1 in Maryland with $36.5 billion in assets, making it one of the largest casualties of the nation's housing slump and credit crisis. Thornburg, a specialist in originating "jumbo" mortgage loans in excess of $417,000 to borrowers with good credit, operated as a residential mortgage lender originating and acquiring investments in adjustable- and variable-rate mortgage assets. It sought bankruptcy protection after announcing in early April 2009 that it would use chapter 11 as a vehicle to liquidate its assets while allowing lenders to take possession of their collateral. Thornburg struggled with liquidity problems since the summer of 2007, when the value of mortgages on its balance sheet began to plummet, and it later confronted a series of margin calls from creditors.

Rounding out the upper half of the Top 10 List for 2009 was General Growth Properties, Inc., a Chicago-based self-administered and self-managed real estate investment trust with 3,500 employees. General Growth, the biggest shopping-mall operator in the nation after the Simon Property Group, filed for chapter 11 protection on April 16 in New York, listing $29.5 billion in assets in one of the biggest commercial real estate collapses in U.S. history. As of December 31, 2007, General Growth had ownership interest in or management responsibility for a portfolio of approximately 200 regional shopping malls in 45 states. Founded in 1954 and expanded through a series of acquisitions—topped by a $12.6 billion deal for the Rouse Company in 2004—General Growth has an enormous retail presence. It has long served as a barometer for the troubles of the U.S. retail market, which has been bedeviled by weak consumer spending.

On December 23, 2009, the bankruptcy court confirmed chapter 11 plans for General Growth and 193 other affiliated debtors owning 85 regional shopping centers, including Ala Moana in Honolulu and St. Louis Galleria in St. Louis; 15 office properties; and three community centers associated with approximately $10.25 billion of secured mortgage loans. The plans provide for the restructuring of 87 mortgages and payment in full of all undisputed claims of creditors. Confirmation of the reorganization plans for 26 additional debtors owning 10 properties associated with an additional $1.7 billion of secured mortgage loans has been adjourned pending satisfaction of various conditions, including receipt of the approval of certain secured lenders, with whom negotiations are ongoing.

Lyondell Chemical Company, the Houston-based third-largest independent chemical manufacturer in the U.S. as of 2008, filed the sixth-largest public bankruptcy case of 2009. Lyondell sought chapter 11 protection in New York on January 6, together with 79 subsidiaries, listing $27 billion in assets. Established in 1985 from certain facilities owned by Atlantic Richfield Company, Lyondell grew by means of various acquisitions to be a Fortune 500 company operating in five continents with more than 11,000 employees. It is an indirect subsidiary of LyondellBasell Industries AF, a Netherlands-based global refiner of crude oil and producer of polymers and petrochemicals that operates 60 manufacturing sites in 19 countries. Lyondell, whose chapter 11 filing had been expected for some time, agreed in 2008 to a $12.7 billion sale to Basell, a Dutch subsidiary of the industrial conglomerate Access Industries. The deal ballooned the combined companies' debt load to nearly $30 billion, forcing LyondellBasell to seek relief from its creditors. Like those of many other chemical companies, Lyondell's profits were significantly eroded by astronomical oil prices for much of 2008, and the slumping economy has constricted demand for its products.

Capturing the No. 7 spot on the Top 10 List for 2009 was the Colonial BancGroup, Inc., which filed for chapter 11 protection in Alabama on August 25—11 days after regulators seized its banking operations and sold most of those assets to BB&T, a Southeast regional bank. Based in Montgomery, Alabama, Colonial BancGroup acted as the holding company for Colonial Bank, a provider of retail and commercial banking, wealth management services, mortgage banking, and insurance products with 4,800 employees and 346 branches in five states. The company collapsed after an aggressive foray into Florida left it exposed to many losses from construction loans and foreclosures. The FDIC, which arranged the sale of most of Colonial's banking assets to BB&T, agreed to split the losses with BB&T on a $15 billion pool made up largely of commercial real estate and construction loans. Including the deposits of Colonial Bank, Colonial BancGroup's corporate families' total assets were estimated at $25.8 billion, although assets listed in the chapter 11 petition (which involved solely the holding company) amounted to no more than $45 million.

Capmark Financial Group, Inc., a Horsham, Pennsylvania-based company with 1,900 employees providing a broad range of financial services to investors in commercial real estate-related assets in North America, Europe, and Asia, filed the eighth-largest public bankruptcy case in 2009. Capmark filed for chapter 11 protection on October 25 in Delaware with $20.6 billion in assets. Capmark was once the servicing and mortgage-banking business of GMAC LLC. It was known as GMAC Commercial Holding Corp. before General Motors Corp. sold a controlling interest in the company in 2006 to a private equity group for $1.5 billion in cash and repayment of $7.3 billion in debt. Capmark, suffering as a consequence of the enduring woes plaguing the commercial real estate market, filed for chapter 11 to complete a sale of most of its business for $1.09 billion to Berkshire Hathaway Inc. and Leucadia National Corp. Some Capmark subsidiaries also filed for chapter 11, but Capmark's banking unit, with assets of $11.12 billion and deposits of $8.39 billion, did not seek bankruptcy protection.

The penultimate position on the Top 10 List for 2009 belongs to Guaranty Financial Group Inc. Guaranty Financial is a Texas-based company with 2,500 employees. It is the holding company for Guaranty Bank, a consumer and business banking network with 150 branches located in Texas and California, and for Guaranty Insurance Services, Inc., one of the largest independent insurance agencies in the U.S., with 17 offices located in Texas and California. With total corporate family assets once estimated at $16.8 billion but listed as not exceeding $25 million at the time of its bankruptcy filing (since only the holding company filed for bankruptcy), Guaranty Financial filed for chapter 11 protection on August 27 in Texas, six days after Guaranty Bank was seized by the Office of Thrift Supervision ("OTS") and handed over to the FDIC. It was the 11th-largest bank failure in U.S. history and is projected to cost the FDIC approximately $3 billion.

Securing the final spot on the Top 10 List for 2009 was BankUnited Financial Corp., a Coral Gables, Florida-based company with 1,504 employees founded in 1984, which operated as the holding company for BankUnited, FSB, a provider of consumer and commercial banking products and services to consumers and businesses located primarily in Florida. With aggregate assets once reported at $15 billion, BankUnited Financial filed for bankruptcy on May 21 in Florida, one day after the OTS seized BankUnited, FSB, and the FDIC transferred the bank's $12.7 billion in assets and $8.3 billion in nonbrokered deposits to a new holding company owned by a private equity group that includes W.L. Ross, The Blackstone Group, and The Carlyle Group. The BankUnited Financial holding company listed no more than $38 million in assets at the time of its bankruptcy filing.

Largest Public Bankruptcies of 2009

Notable Exits From Bankruptcy in 2009

Arguably the most notable chapter 11 plan confirmation of 2009 was achieved by small and mid-sized business financier CIT Group Inc. ("CIT"), which filed the fifth-largest public bankruptcy case of all time (and was No. 2 on the Top 10 List for 2009), on November 11 in New York with $80.5 billion in assets. The bankruptcy court confirmed CIT's prepackaged chapter 11 plan—the largest prepackaged filing of all time—only 37 days afterward, yet another testament to the ascendancy of the "prepack" as a preferred alternative to a full-fledged chapter 11 case.

The plan reduces CIT's debt by more than $10 billion and gives unsecured noteholders new debt instruments valued at 70 percent of their prebankruptcy claims, plus new common stock. The plan extinguishes preferred stock received by the U.S. Treasury Department in exchange for TARP funding. As noted, CIT is the first of the ill-fated financial companies to emerge from bankruptcy protection.

On December 23, a New York bankruptcy court confirmed a chapter 11 plan for nationwide shopping-mall owner-operator General Growth Properties, Inc., No. 5 on 2009's Top 10 List with $29.5 billion in assets, after an eight-month stay in bankruptcy. As noted previously, the chapter 11 plans of General Growth and 193 other affiliated debtors owning 85 regional shopping centers, 15 office properties, and three community centers associated with approximately $10.25 billion of secured mortgage loans provide for the restructuring of 87 mortgages and the payment in full of all undisputed claims of creditors.

American Home Mortgage Corp. ("AHMC"), the Melville, New York-based subprime mortgage lender, obtained confirmation of a liquidating chapter 11 plan on February 23, 2009. AHMC filed for bankruptcy protection in Delaware on August 6, 2007 (No. 2 on the Top 10 List for 2007), with $19 billion in assets and an estimated $20 billion in aggregate liabilities, when it was unable to originate new loans after plummeting real estate values and snowballing mortgage defaults perpetuated a liquidity crisis.

Troy, Michigan-based Delphi Corporation, once America's biggest auto-parts maker, obtained confirmation of a chapter 11 plan on January 25, 2008, but struggled throughout 2008–09 to secure $6.1 billion in exit financing or capital contemplated by the plan (including Delphi's inability to close on a $2.55 billion investment from private equity fund Appaloosa Management). Delphi filed for bankruptcy on October 8, 2005, in New York, listing $17 billion in assets and $22 billion in debt, including an $11 billion underfunded pension liability.

While in bankruptcy, Delphi radically contracted its manufacturing presence in the U.S., with thousands of Delphi workers taking buyouts financed by GM, which had spun off Delphi a decade ago, and the closure or sale of plants that made low-tech products like door latches and brake systems. Delphi also negotiated lower wages with its remaining American workers. As a consequence, Delphi's U.S. operations have become a small adjunct to its international businesses.

Delphi finally emerged from bankruptcy on October 7, 2009, more than 20 months after it first obtained plan confirmation, when Delphi Holdings LLP, the entity formed by Delphi's debtor-in-possession lenders, completed the acquisition of Delphi's core businesses. Under a modified reorganization plan approved by the bankruptcy court on July 30, 2009, debtor-in-possession ("DIP") lenders led by Elliott Management Corp. and Silver Point Capital LP combined with a GM affiliate to buy Delphi. The DIP lenders credit-bid at least $3.4 billion in secured claims for the company. They also provided up to $300 million in cash to pay unsecured creditors and $15 million for administrative claims, in addition to assuming certain liabilities and associated cure costs.

Charter Communications Inc., the St. Louis-based fourth-largest U.S. cable operator, with 16,600 employees and 5.5 million subscribers in 27 states, emerged from bankruptcy on November 30 after the bankruptcy court confirmed its chapter 11 plan on November 17. Charter and 129 affiliates filed prenegotiated chapter 11 cases on March 27 in New York listing nearly $14 billion in assets, after negotiating the framework of a debt restructuring with bondholders. The filing was precipitated by an unsustainable $22.4 billion debt burden that Charter amassed in a string of acquisitions that rendered the company unable to turn a profit since it went public in 1999. The plan reduced Charter's debt burden by approximately $8 billion, in exchange for which bondholders were given nearly all of the equity in the reorganized company.

SemGroup, L.P., a privately held midstream service company based in Tulsa, Oklahoma, emerged from bankruptcy on December 1. SemGroup provides the energy industry with the means to transport products from the wellhead to wholesale marketplaces principally in the U.S., Canada, Mexico, and the U.K. Together with two dozen of its subsidiaries, SemGroup filed for chapter 11 on July 22, 2008, in Delaware, after revealing that its traders, including cofounder Thomas L. Kivisto, were responsible for $2.4 billion in losses on oil futures transactions and that the company faced insurmountable liquidity problems. The bankruptcy court confirmed SemGroup's fourth amended plan of reorganization on October 29, 2009. Under the plan, SemGroup Corp. emerged from bankruptcy protection as a new public company. Secured lenders now hold 95 percent of the reorganized company.

ASARCO, Inc., a mining, smelting, and refining company producing copper, specialty chemicals, and aggregates through its subsidiaries, ended its stay in bankruptcy on December 9, 2009, after an extended and contentious battle over who would control the company after it emerged from chapter 11. Formerly known as American Smelting and Refining Company, ASARCO was founded in 1899. A century later, it became a subsidiary of Grupo México SAB, the world's sixth-largest copper producer, which itself began as ASARCO's 49 percent-owned Mexican subsidiary.

ASARCO filed for chapter 11 protection on August 9, 2005, in Texas, listing $1.1 billion in assets and $1.9 billion in debt (although some estimates placed the company's asset value as high as $4 billion), citing a combination of environmental liabilities, lawsuits from former workers with asbestos-related health problems, high labor and production costs, and continuing industrial action. ASARCO had nearly 95,000 asbestos claims filed against it, totaling $2.7 billion, when it filed for bankruptcy protection. The company was also facing environmental claims filed against it by 16 states, the federal government, two Native American tribes, and private parties involving 75 sites. According to the Environmental Protection Agency, ASARCO is responsible for no fewer than 20 "Superfund" sites.

Shortly after ASARCO filed for bankruptcy, Grupo México, which was alleged to have orchestrated fraudulent transfers of ASARCO's assets, lost control of the company. The fraudulent conveyance claims ultimately resulted in an $8 billion judgment against Grupo México. A Texas district court confirmed a chapter 11 plan on November 13 proposed by Grupo México that returns control of the company to the Mexican parent. The plan establishes a trust to pay asbestos claims under section 524(g) of the Bankruptcy Code, transfers ownership of ASARCO back to two Grupo México units in exchange for approximately $2.5 billion, and releases all claims against the parent company.

Pittsburgh, Texas-based Pilgrim's Pride Corp., once the largest chicken producer in the U.S., with 50,000 employees in the U.S. and Mexico, flew out of bankruptcy on December 28, after roosting in chapter 11 for slightly more than one year. Facing high feed-ingredient costs, an oversupply of chickens, weak market pricing, and softening demand, Pilgrim's Pride and six affiliates, which export poultry products to more than 80 countries including China, Japan, Kazakhstan, and Russia and had net sales of $7.6 billion in 2007, filed for chapter 11 protection on December 1, 2008, in Texas.

The bankruptcy court confirmed a chapter 11 plan for Pilgrim's Pride on December 10, 2009. Under the plan, Pilgrim's Pride agreed to sell a 64 percent equity stake in the reorganized company to Brazilian beef processor JBS U.S.A. Holdings for $800 million in cash, which was used to fund distributions to creditors. The company emerged from bankruptcy with $1.7 billion in secured exit financing provided by a syndicate of lenders.

On September 3, 2009, WCI Communities, Inc., a Bonita Springs, Florida-based home builder, exited bankruptcy after a Delaware bankruptcy court confirmed the company's chapter 11 plan on August 26. WCI and 130 of its subsidiaries filed for chapter 11 protection on August 4, 2008, citing the "recognition that the company's entire $1.8 billion of debt may soon be in default." WCI emerged from bankruptcy as a private company, eliminating more than $2 billion in debt and other liabilities. Once led by billionaire investor Carl Icahn, WCI is now controlled by Monarch Alternative Capital, a private investment firm. WCI, whose business was concentrated in Florida, one of the states hardest hit by the housing downturn, was among the biggest in builder bankruptcies, which also included Tousa Inc and Levitt & Sons.

Finally, a nearly nine-year ordeal in bankruptcy finally ended on November 17, 2009, when G-I Holdings, Inc., formerly known as GAF Corporation, emerged from chapter 11 after obtaining confirmation of its eighth amended plan of reorganization. G-I, a Wayne, New Jersey-based holding company that indirectly owns Building Materials Corp. of America, which manufactures premium residential and commercial roofing products, filed for bankruptcy in January 2001 in New Jersey, listing total prepetition assets of $1.9 billion. G-I blamed its bankruptcy filing on asbestos liabilities and payment of more than $1.5 billion in claims and expenses for about 500 asbestos-related personal-injury cases linked to its 1967 acquisition of Ruberoid, a manufacturer of asbestos insulation. The plan confirmed by a New Jersey district court wipes out existing equity interests and establishes a trust under section 524(g) of the Bankruptcy Code for the benefit of the holders of more than $7 billion in asbestos claims.

Legislative Developments

Amendments to the Federal Rules of Bankruptcy Procedure Revise Time Periods

On December 1, 2009, certain amendments to the Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules") became effective that impact the computation of virtually all time periods, ranging from the time to appeal court orders to the notice periods for disclosure statement and plan confirmation hearings. These amendments are part of a broader effort by the Judicial Conference's Committee on Rules of Practice and Procedure to standardize the computation of time periods across all federal courts, which resulted in similar revisions to the federal Civil Rules, Appellate Rules, and Criminal Rules. Among other changes, the amendments:

• Revise Bankruptcy Rule 9006(a), which previously excluded weekends and holidays when counting days if the time period was less than eight days, but not if the period was eight days or more, which often caused confusion when calculating deadlines. Under the new Bankruptcy Rule 9006(a), weekends and holidays are always counted, regardless of the time period (unless the last day happens to be a weekend or holiday, in which case the deadline will fall on the next business day).

• Revise most time periods in the Bankruptcy Rules of less than 30 days to be multiples of seven, so that deadlines will usually fall on a weekday.

• Revise Bankruptcy Rule 8002 to extend from 10 to 14 days the time to appeal a court order, with corresponding changes to the stay periods in Bankruptcy Rules 6004(h) and 6006(d). Parties to a significant transaction that requires bankruptcy-court approval, such as an asset sale or settlement, are frequently required to wait to close the transaction until any applicable stay period has expired (unless the court has ordered otherwise) and the court's order has become final and nonappealable. Such a delay will be extended by four days under the amended rules.

The new amendments to the Bankruptcy Rules became effective on December 1, 2009, and apply to cases filed prior to that date, unless such application would be infeasible or would cause an injustice. As a result of these amendments to the Bankruptcy Rules, most local bankruptcy-court rules have been amended to reflect conforming changes.

Amendments to Russian Insolvency Law Enacted

On April 28, 2009, the President of the Russian Federation signed into law amendments to the Russian Law on Insolvency (Bankruptcy) of October 26, 2002 (Federal Law No. 127-FZ) (the "Insolvency Law") that should be considered by all creditors doing business with financially troubled Russian companies, their directors, and other controlling persons of Russian companies and participants in the market for distressed Russian assets. Many of the changes reflect pro-creditor concepts that were extensively introduced in another series of amendments adopted just before the end of 2008, but a number of the new amendments are likely to make it more difficult and time-consuming for creditors to obtain payment on their claims.
Among other things, the 2009 amendments: (i) introduce two new concepts governing the obligation of the directors of a Russian company to file a petition with the Arbitrazh court (state commercial court) for insolvency—"insufficiency of assets" and "inability to pay" (equating, respectively, to the "balance-sheet test" and the "cash-flow test" of solvency in U.S. and English law); (ii) implement secondary liability of any "controlling person" as well as directors for a debtor's obligations under certain circumstances; and (iii) provide additional grounds for challenging transfers by the debtor that can be voided by an insolvency officer (external administrator or bankruptcy receiver) on his own initiative or in accordance with any directive issued after a duly constituted creditors' meeting.

According to commentators, the new amendments to the Insolvency Law are intended to prevent asset stripping in a company on the verge of insolvency and to expand bankruptcy assets through the filing of claims against third parties. Moreover, the provisions relating to challenging transactions could constitute an extremely powerful tool in the hands of an insolvency officer. It remains to be seen how effective the amended law will be in achieving these goals.

New Amendments to Canadian Insolvency Law

A major package of reforms to Canada's Bankruptcy and Insolvency Act ("BIA") and Companies' Creditors Arrangement Act ("CCAA") came into force on September 18, 2009. The most significant features of the insolvency reforms pertaining to business cases include:

• Codification of a large body of case law developed in restructurings under the CCAA regarding a court's authority to authorize debtor-in-possession financing, to authorize the sale of assets in a restructuring proceeding, and to permit the debtor to reject or assign certain kinds of contracts;

• Enhanced protection for collective bargaining agreements and intellectual property licenses;

• Provisions authorizing the appointment of a national receiver with powers that are exercisable throughout Canada, rather than merely in the province where the appointment is made, and provisions specifying the powers that the court may confer upon a receiver;

• Limitations on the rights of equity holders in restructurings;

• The adoption of procedures for dealing with cross-border insolvency proceedings based on the UNCITRAL Model Law, which has been enacted in various forms in 17 countries or territories, including the U.S. (in the new chapter 15 of the U.S. Bankruptcy Code), Great Britain, and Japan;

• Provisions protecting a receiver or trustee in bankruptcy from personal liability for claims made in connection with collective bargaining agreements or pension plans; and

• The replacement of several technical remedies in the BIA with a general power to challenge "transfers at undervalue" by the debtor and the incorporation of this power in CCAA proceedings.

The amendments apply to bankruptcies or restructurings formally commenced under the BIA or CCAA on or after September 18, 2009.

New Cayman Islands Corporate Insolvency Law

The laws of the Cayman Islands dealing with corporate insolvency were updated by the implementation on March 1, 2009, of amendments to the Cayman Islands Companies Law that were originally enacted in 2007 but lay dormant pending the promulgation of three new sets of procedural rules governing the conduct of insolvency matters and an amendment to the rules of the Cayman Islands Grand Court.

The new rules are the Companies Winding-Up Rules 2008, the Insolvency Practitioners' Regulations 2008, the Foreign Bankruptcy Proceedings (International Cooperation) Rules 2008, and the Grand Court (Amendment No. 2 Rules) 2008. Previously, insolvency procedures in the Cayman Islands were generally regarded as haphazard and unsatisfactory.

Among the provisions in the new rules is the express duty of official liquidators of Cayman Islands companies that are the subject of parallel insolvency proceedings in another jurisdiction, or whose assets overseas are subject to foreign bankruptcy or receivership proceedings, to consider whether it is advisable to enter into an international protocol for the purpose of coordinating the cross-border proceedings. Other provisions include the elimination of strict deadlines for the payment of distributions to creditors after expiration of the claim submission deadline and the implementation of a specific regime to govern the treatment of unclaimed dividends.

Notable Business Bankruptcy Decisions of 2009

Allowance/Disallowance/Priority of Claims

Changes made to the Bankruptcy Code in 2005 as part of BAPCPA raised the bar for providing incentives that had been offered routinely to management of a chapter 11 debtor by way of a severance or key employee retention plan designed to ensure that vital personnel would be willing to steward the company through its bankruptcy case, whether it involved reorganization or liquidation. Under the new regime, when a debtor company wants to offer extraordinary incentives to a key employee, section 503(c) of the Bankruptcy Code mandates, among other things, that retention payments or obligations be "essential" both to retaining the employee and to the survival of the business and prohibits any other nonordinary-course expenditures not "justified by the facts and circumstances of the case."

However, courts applying the new provision have not been able to settle on a clear standard to evaluate such payments. In early 2009, a Texas bankruptcy court examined the issue and articulated its own standard. In In re Pilgrim's Pride Corp., 401 B.R. 229 (Bankr. N.D. Tex. 2009), the court ruled that a payment to an insider that is not in the ordinary course of business may be granted administrative expense priority only if the court finds, independent of the debtor's business justification, that the payment is in the best interest of the parties.

By its terms, section 503(c) applies to payments or obligations to "insiders," a term defined elsewhere in the Bankruptcy Code to include, with respect to a corporate debtor, directors, officers, or other persons in control of the corporation. A Delaware bankruptcy court considered the boundaries of "insider" status in this context in In re Foothills Texas, Inc., 408 B.R. 573 (Bankr. D. Del. 2009), holding that the mere fact that employees to whom a chapter 11 debtor sought to make retention payments held the title of "vice president" was not determinative of whether they were, in fact, "officers" of the debtor, and thus "insiders," for the purpose of section 503(c). According to the court, a person holding the title of "officer" is presumed to be an insider, and overcoming that presumption requires submission of evidence sufficient to establish that the officer does not, in fact, participate in the management of the debtor.

The Ninth Circuit Court of Appeals handed down a ruling in 2009 addressing a question left unanswered by Travelers Casualty & Surety Co. v. Pacific Gas & Electric Co., 549 U.S. 443 (2007), in which the U.S. Supreme Court ruled that the Bankruptcy Code does not prohibit a creditor's contractual claim for attorneys' fees incurred in connection with litigating the validity in bankruptcy of claims based upon the underlying contract. Travelers rejected the "Fobian rule" articulated in Fobian v. Western Farm Credit Bank (In re Fobian), 951 F.2d 1149 (9th Cir. 1991). Left unanswered by Travelers, however, was whether postpetition attorneys' fees may be allowed as part of an unsecured claim, because the Supreme Court specifically refused to decide whether Travelers' claim for postpetition attorneys' fees was disallowed under section 502(b)(1) due to its status as an unsecured creditor. In 2009, the Ninth Circuit became the first court of appeals to address this question. In SNTL Corporation v. Centre Insurance Co. (In re SNTL Corp.), 571 F.3d 826 (9th Cir. 2009), the court of appeals ruled that "claims for postpetition attorneys' fees cannot be disallowed simply because the claim of the creditor is unsecured."

Later in 2009, the Second Circuit Court of Appeals weighed in on the same issue, agreeing with the Ninth Circuit that "an unsecured claim for post-petition fees, authorized by a valid pre-petition contract, is allowable under section 502(b) and is deemed to have arisen pre-petition." In Ogle v. Fidelity & Deposit Co. of Maryland, 586 F.3d 143 (2d Cir. 2009), a creditor who provided a prepetition surety bond to a debtor and who entered into a prepetition indemnity agreement incurred attorneys' fees postpetition in suing to enforce the indemnity, after paying the debtor's creditors under the bond postpetition. The Second Circuit ruled that the creditor had an allowed prepetition unsecured claim for the postpetition attorneys' fees. According to the court, "section 506(b) does not implicate unsecured claims for post-petition attorneys' fees, and it therefore interposes no bar to recovery."

Section 503(b)(9) was added to the Bankruptcy Code in 2005 to confer administrative priority upon claims asserted by vendors for the value of "goods" received by the debtor in the ordinary course of its business within 20 days of filing for bankruptcy. A dispute has existed ever since enactment of the administrative priority for such "20-day claims" concerning the precise definition of "goods," most pointedly regarding whether claims for "services" or "mixed goods and services" are eligible. This controversy continued to play out in the courts during 2009.

For example, in In re Pilgrim's Pride Corp., 2009 WL 2959717 (Bankr. N.D. Tex. Sept. 16, 2009), a Texas bankruptcy court ruled that, although claims based upon the value of trucking-company transportation services and metered electric power provided to the debtor in the 20 days immediately preceding the bankruptcy petition date were not entitled to administrative expense priority, claims for the value of natural gas and water related to qualifying "goods" and thus fell within section 503(b)(9). In In re Modern Metal Products Co., 2009 WL 2969762 (Bankr. N.D. Ill. Sept. 16, 2009), an Illinois bankruptcy court applied the "predominant purpose" test used under the Uniform Commercial Code ("UCC") to determine whether a claim based upon the provision of mixed goods and services qualified for section 503(b)(9) priority, concluding that modifications made by a steel processor to steel blanks provided by the debtor constituted services rather than goods. In In re Circuit City Stores, Inc., 416 B.R. 531 (Bankr. E.D. Va. 2009), the bankruptcy court, in response to the debtor's request for guidance on the appropriate definition of "goods" in section 503(b)(9), held that the UCC definition of the term should be utilized as the federal definition for purposes of construing section 503(b)(9) and that the "predominant purpose" test should apply to "hybrid" transactions involving the delivery of both goods and services.

Appeals

Protecting the legitimate expectations of innocent stakeholders and the difficulty of "unscrambling the egg" are issues that a court is obligated to consider when confronted with any kind of challenge to a confirmation order, whether it involves a request to revoke the order under section 1144 of the Bankruptcy Code or otherwise. Courts faced with various kinds of challenges to a confirmation order will sometimes reject the assault under the "doctrine of equitable mootness" because it is simply too late or too difficult to undo transactions consummated under the plan.

A court will dismiss a proceeding challenging an order confirming a chapter 11 plan as being equitably, as opposed to constitutionally, moot if such relief, although possible, would be inequitable under the circumstances, given the difficulty of restoring the status quo ante and the impact on all parties involved. The threshold inquiry in applying the doctrine is ordinarily whether a chapter 11 plan has been "substantially consummated" (i.e., substantially all property transfers contemplated by the plan have been completed, the reorganized debtor or its successor has assumed control of the debtor's business, and property and plan distributions have commenced).

The Tenth Circuit Court of Appeals formally adopted the doctrine of equitable mootness in 2009 in Search Market Direct Inc. v. Jubber (In re Paige), 584 F.3d 1327 (10th Cir. 2009), setting forth six factors to consider in determining whether the doctrine should moot appellate review of a plan confirmation order: (1) whether the appellant sought and/or obtained a stay pending appeal; (2) whether the plan has been substantially consummated; (3) whether the rights of innocent third parties would be adversely affected by reversal of the confirmation order; (4) whether the public-policy need for reliance on the confirmed bankruptcy plan—and the need for creditors generally to be able to rely on bankruptcy-court decisions—would be undermined by reversal of the confirmation order; (5) the likely impact upon a successful reorganization of the debtor if the appellant's challenge were successful; and (6) whether, based upon a brief examination of the merits of the appeal, the appellant's challenge is legally meritorious or equitably compelling. The Tenth Circuit also ruled that the party seeking to prevent appellate review bears the burden of proving that the court should abstain from reaching the merits, rejecting an analysis adopted by the Second Circuit in Aetna Cas. & Sur. Co. v. LTV Steel Co. (In re Chateaugay Corp.), 94 F.3d 772 (2d Cir. 1996), under which substantial consummation of a plan shifts that burden to the party seeking appellate review of the plan.

Automatic Stay

The automatic stay triggered by the filing of a bankruptcy petition is one of the most important features of U.S. bankruptcy law. It provides debtors with a "breathing spell" from creditor collection efforts and protects creditors from piecemeal dismantling of the debtor's assets by discouraging a "race to the courthouse." The Bankruptcy Code also contains a mechanism—section 362(k)—to sanction parties who ignore the statutory injunction, if their conduct amounts to a willful violation and another "individual" is injured as a consequence. However, courts disagree concerning precisely which stakeholders in a bankruptcy case (e.g., individual debtors, corporate debtors, trustees, and/or creditors) should have standing to invoke the remedies set forth in section 362(k). The Fifth Circuit Court of Appeals considered this question in 2009 as a matter of first impression. In St. Paul Fire & Marine Ins. Co. v. Labuzan, 579 F.3d 533 (5th Cir. 2009), the court ruled that a creditor has standing to seek an award of damages under section 362(k), provided that its claim is direct rather than derivative.

Avoidance Actions/Trustee's Avoidance and Strong-Arm Powers

The continued vitality of "savings clauses" in loan agreements designed to minimize the risk of a finding that a loan guarantor is insolvent in analyzing whether the loan transaction can be avoided as a fraudulent transfer was dealt a blow by a highly controversial ruling handed down in 2009 by a Florida bankruptcy court. In the first test in the bankruptcy courts of the enforceability of savings clauses in "upstream guarantees," the bankruptcy court in Official Committee of Unsecured Creditors of TOUSA, Inc. v. Citicorp North America, Inc., 2009 WL 3519403 (Bankr. S.D. Fla. Oct. 30, 2009), set aside as fraudulent conveyances obligations incurred and liens granted by subsidiaries of the debtor under certain loan agreements and related guarantees. In doing so, the court unequivocally invalidated savings clauses in upstream guarantees.

The ruling has been greeted by the lending community and commentators with a mixture of shock, dismay, disbelief, and resignation that yet another highly touted and common risk-mitigation technique has not proved to be as reliable as anticipated. If upheld on appeal and followed by other courts, the ruling may have a marked impact on lenders and debtors alike and may portend an increase in litigation against lenders that have insisted upon guarantees in loan transactions which include savings clauses.

There is little debate concerning the efficacy of the "settlement payment defense" in shielding from avoidance as constructively fraudulent payments made to shareholders during the course of a leveraged buyout ("LBO") transaction. However, whether the LBO transaction can involve privately held, as well as publicly traded, securities has been the subject of considerable debate in the courts. No fewer than three federal circuit courts of appeal had an opportunity in 2009 to weigh in on this important issue—the Eighth Circuit in Contemporary Industries Corp. v. Frost, 564 F.3d 981 (8th Cir. 2009); the Sixth Circuit in In re QSI Holdings, Inc., 571 F.3d 545 (6th Cir. 2009); and, most recently, the Third Circuit in In re Plassein Intern. Corp., 2009 WL 4912137 (3d Cir. Dec. 22, 2009). All three courts concluded, the Eighth and Sixth Circuits as a matter of first impression, that section 546(e) of the Bankruptcy Code applies to both public and private securities transactions, establishing in short order a majority rule among the circuits on the issue.

Section 546(e) was the focus of another significant ruling in 2009. A New York bankruptcy court considered in In re Enron Creditors Recovery Corp., 407 B.R. 17 (Bankr. S.D.N.Y. 2009), whether the section 546(e) safe harbor extends to transactions in which commercial paper is redeemed by the issuer prior to maturity. The court held that if commercial paper is extinguished due to a prematurity redemption, and when the payment made for the commercial paper is equal to the principal plus the interest accrued to the date of payment, the payment made by the issuer is for the purpose of satisfying the underlying debt rather than a sale, such that the transfer does not qualify as a settlement payment under section 546(e).

Transactions between companies and the individuals or entities that control them, are affiliated with them, or wield considerable influence over their decisions are examined closely due to a heightened risk of overreaching caused by the closeness of the relationship. The degree of scrutiny increases if the company files for bankruptcy. A debtor's transactions with such "insiders" will be examined to determine whether prebankruptcy transfers made by the debtor may be avoided because they are preferential or fraudulent, whether claims asserted by insiders may be subject to equitable subordination, and whether the estate can assert causes of action based upon fiduciary infractions or other tort or lender liability claims.

Designation as a debtor's "insider" means, among other things, that the "look-back" period for preference litigation is expanded from 90 days to one year, claims asserted by the entity may be subject to greater risk of subordination or recharacterization as equity, and the entity's vote in favor of a cram-down chapter 11 plan may not be counted. The Bankruptcy Code contains a definition of "insider." However, as demonstrated by a ruling handed down in 2009 by the Third Circuit Court of Appeals, the statutory definition is not exclusive. In Schubert v. Lucent Technologies Inc. (In re Winstar Communications, Inc.), 554 F.3d 382 (3d Cir. 2009), the court of appeals, in a matter of first impression, ruled that a creditor which used the debtor as a "mere instrumentality" to inflate its own revenues was a "non-statutory" insider for purposes of preference litigation.

An Illinois bankruptcy court considered in 2009 whether a member or manager of a limited liability company ("LLC") is an "insider" for purposes of preference litigation. In In re Longview Aluminum, L.L.C., 2009 WL 4047999 (Bankr. N.D. Ill. Nov. 24, 2009), the court ruled that an entity need not exert control over the debtor in order to qualify as a nonstatutory "insider" and that the defendant's position, as one of five managers of an LLC in chapter 11, was similar to that of corporate director, such that he qualified as an "insider."

In general, D&O policies provide coverage for certain claims based on alleged wrongful acts committed by a company's directors and officers. Typically included in these policies is what is commonly called an "insured versus insured" exclusion, which excludes coverage for any claim made against an insured that is brought by another insured, the company, or any of the company's security holders.

If a company files suit against its directors and officers, such a suit clearly falls within the insured-versus-insured exclusion, allowing the insurance company to deny coverage for the suit. If, however, the suit is brought after the company files for bankruptcy, so that the plaintiff is either a bankruptcy trustee or a chapter 11 debtor in possession, the insurance company's reliance on the insured-versus-insured exclusion to deny coverage is the subject of debate. The Ninth Circuit Court of Appeals addressed this question in 2009 in Biltmore Associates, LLC v. Twin City Fire Ins. Co., 572 F.3d 663 (9th Cir. 2009), concluding that "for purposes of the insured versus insured exclusion, the prefiling company and the company as debtor in possession are the same entity." As such, the court ruled that claims against a chapter 11 debtor's officers and directors for breach of statutory and fiduciary duties were excluded from coverage under the debtor's D&O policy, even though the claims had been assigned under the debtor's chapter 11 plan to a creditor litigation trust.

One limitation on the ability of a bankruptcy trustee or chapter 11 debtor in possession ("DIP") to prosecute claims belonging to the bankruptcy estate is the doctrine of in pari delicto, or "unclean hands," which refers to the principle that a plaintiff who has participated in wrongdoing may not recover damages resulting from the wrongdoing. Many courts hold that wrongdoing committed by the prebankruptcy debtor or its principals is imputed to the DIP or trustee and any entity authorized to prosecute claims on the estate's behalf. The Third Circuit Court of Appeals examined the scope of the doctrine in 2009 in OHC Liquidation Trust v. Credit Suisse (In re Oakwood Homes Corp.), 2009 WL 4829835 (3d Cir. Dec. 16, 2009). The court ruled that the in pari delicto doctrine prevented a liquidation trust created under the debtor's confirmed chapter 11 plan from asserting claims against the debtor's prepetition securities underwriter for alleged negligence, breach of contract, and breach of fiduciary duties that it owed to the debtor in executing certain allegedly "value-destroying" securitization transactions, as part of a business strategy approved by the debtor's management and board of directors.

Bankruptcy Asset Sales

Despite recent pronouncements that the worldwide recession has ended, an enduring overall financial malaise and credit crunch have caused a marked paradigm shift in U.S. bankruptcy cases. Companies struggling to find affordable financing in chapter 11 (in the form of DIP financing, refinancing, or exit financing), or seeking to minimize the administrative costs associated with full-fledged chapter 11 cases, are increasingly opting for section 363 sales or prepackaged bankruptcies in an effort to fast-track the process.

The pervasiveness of sales of all or substantially all of a company's assets under section 363(b) of the Bankruptcy Code (as opposed to sales or reorganizations under a chapter 11 plan) even led the Second Circuit Court of Appeals to observe in its 2009 (now vacated) ruling upholding the sale of Chrysler's assets to a consortium led by Italian automaker Fiat—In re Chrysler LLC, 576 F.3d 108 (2d Cir.), vacated, 2009 WL 2844364 (Dec. 14, 2009)—that "[i]n the current economic crisis of 2008–09, § 363(b) sales have become even more useful and customary . . . [and] [t]he ‘side door' of § 363(b) may well ‘replace the main route of Chapter 11 reorganization plans.' " Expedited section 363 sales in other chapter 11 cases in 2009 involving General Motors and the Chicago Cubs (not to mention the emergency sale of Lehman Brothers in 2008) suggest that this prediction may be right on the mark.

In its landmark Chrysler ruling, the Second Circuit held, among other things, that: (i) the bankruptcy court did not abuse its discretion in approving the sale of substantially all of Chrysler's assets under section 363(b) one month after it filed a prepackaged chapter 11 case on April 30, 2009, because the sale did not constitute an impermissible sub rosa chapter 11 plan and prevented further, unnecessary losses; and (ii) the plaintiffs, which included three Indiana pension funds holding first-priority secured claims, lacked standing to raise the issue of whether the U.S. Secretary of the Treasury exceeded his statutory authority by using money from the TARP to finance the sale of Chrysler's assets, as they could not demonstrate that they had suffered any injury.

Although the sale transaction ultimately closed on June 10 after the U.S. Supreme Court initially refused to hear an appeal of the sale order lodged by the Indiana pension plans and certain other parties, the Supreme Court, in a curious twist of bankruptcy jurisprudence, issued a ruling on the appeal on December 14. In Indiana State Police Pension Trust v. Chrysler LLC, 2009 WL 2844364 (Dec. 14, 2009), the Supreme Court, in a three-sentence summary disposition, granted the petition for a writ of certiorari, vacated the Second Circuit's judgment, and remanded the case below with instructions to dismiss the appeal as moot, presumably because the sale had already been consummated. Vacatur means that the ruling is deprived of all precedential value. Thus, whether the significant pronouncements of the Second Circuit concerning section 363(b) sales can be relied on in other cases is open to dispute.

One of the key protections afforded to secured creditors under the Bankruptcy Code is the right of a holder of a secured claim to credit-bid the allowed amount of its claim as part of a sale process under section 363(k) of the Bankruptcy Code. Although straightforward in concept, the notion of credit bidding can be complicated by the realities of large chapter 11 cases, where oftentimes the senior secured lender is a syndicate of lenders under a common credit agreement or secured indenture. In such instances, the collective nature of the debt gives rise to potential conflicts among lenders regarding the appropriate strategy in pursuing recovery on their claims.

In the bankruptcy-sale context, this can lead to disputes among lenders in a syndicate as to whether to pursue a credit bid under section 363(k). If the majority of lenders pursue a credit bid but certain lenders object, is the credit bid valid? Can the sale process proceed over the objection of the holdout lenders? When debt documents specifically address these issues, the result may be clear. When there is ambiguity in the debt documents or the debt documents fail to address the issue, litigation may ensue. This was the case in a ruling handed down in 2009 by a Delaware bankruptcy court in In re GWLS Holdings, Inc., 2009 WL 453110 (Bankr. D. Del. Feb. 23, 2009). There, the court approved a credit bid for the debtor's assets by some, but not all, of the members of a syndicate of first-priority secured lenders. Among other things, the court found that the rights delegated to the first-lien agent under the agreements involved, including all rights the first-lien agent had under the UCC or any applicable law, included rights arising under the Bankruptcy Code and, in particular, section 363(k) and that nothing in the agreements—including an amendment and waiver provision—overrode that authorization.

In its now vacated Chrysler ruling (discussed above), the Second Circuit reached the same conclusion regarding consent to the sale of assets and the associated release of liens. In approving the sale of Chrysler's assets free and clear of all liens, the court of appeals ruled that the bankruptcy court properly held that, although the Indiana pension funds (which held a portion of the first-lien debt) did not consent to the sale order's release of all liens on Chrysler's assets, consent was validly provided by the collateral trustee, who had authority to act on behalf of all first-lien credit holders. As noted, however, the Second Circuit's ruling was later vacated, depriving it of any precedential value.

Prior to vacatur of the Second Circuit's Chrysler decision, a New York bankruptcy court, in In re Metaldyne Corp., 409 B.R. 671 (Bankr. S.D.N.Y. 2009), relied upon Chrysler and GWLS Holdings to find that a collateral agent for a syndicate of lenders had authority to credit-bid the entire amount of the lenders' secured claims despite the objection of one of the holders of the debt. In Metaldyne, the court construed a provision in a credit agreement prohibiting any modifications or amendments thereto without the consent of all participating lenders. The court concluded that the provision did not give the dissenting lender the right to prevent the collateral agent, whom it had irrevocably appointed to act on its behalf and to exercise "any and all rights afforded to a secured party under the Uniform Commercial Code or other applicable law," from credit-bidding the full amount of the allowed secured claim in connection with an auction sale of the chapter 11 debtors' assets under section 363(b) of the Bankruptcy Code. The district court affirmed the ruling on appeal in In re Metaldyne Corp., 2009 WL 5125116 (S.D.N.Y. Dec. 29, 2009), ruling, among other things, that the appeal was constitutionally moot under section 363(m) because the parties challenging the sale failed to obtain a stay pending appeal.

Credit bidding in the context of a chapter 11 plan providing for the sale of a secured lender's collateral was the subject of two important rulings in 2009. Refer to the "Chapter 11 Plans" section below for a discussion of In re Pacific Lumber Co., 584 F.3d 229 (5th Cir. 2009), and In re Philadelphia Newspapers, LLC, 2009 WL 3242292 (Bankr. E.D. Pa. Oct. 8, 2009), rev'd, 418 B.R. 548 (E.D. Pa. 2009).

Bankruptcy-Court Powers/Jurisdiction

The power to alter the relative priority of claims due to the misconduct of one creditor that causes injury to others is an important tool in the array of remedies available to a bankruptcy court in exercising its broad equitable powers. By subordinating the claim of an unscrupulous creditor to the claims of blameless creditors who have been harmed by the bad actor's misconduct, the court has the discretion to implement a remedy that is commensurate with the severity of the misdeeds but falls short of the more drastic remedies of disallowance or recharacterization of a claim as equity.

A Montana bankruptcy court had an opportunity in 2009 to consider whether the alleged misdeeds of a secured lender in connection with "aggressive" financing provided to a company merited equitable subordination of the lender's claim. In Credit Suisse v. Official Committee of Unsecured Creditors (In re Yellowstone Mountain Club, LLC), 2009 WL 3094930 (Bankr. D. Mont. May 12, 2009), the court ordered that a senior secured claim asserted by the lender in the amount of $232 million based upon a new syndicated loan product marketed to the owner of a chapter 11 debtor must be subordinated to the claims of a bank that provided debtor-in-possession financing, administrative claims, and the claims of the debtor's unsecured creditors. According to the bankruptcy court, the lender's actions in making the loan "were so far overreaching and self-serving that they shocked the conscience of the Court" because the lender's conduct amounted to "naked greed," having been "driven by the fees it was extracting from the loans it was selling." Although the court subsequently vacated its ruling as part of a global settlement of the litigation, rendering the decision of no precedential value, the message borne by it for lenders is sobering.

Bankruptcy Professionals

The circumstances under which a bankruptcy professional's fee arrangement preapproved by the court will be subject to subsequent court review under the relatively lenient section 328 "improvidence" standard or the section 330 "reasonableness" standard, where the court's preapproval does not make clear which standard will apply, were addressed as a matter of first impression in a ruling handed down in 2009 by the Second Circuit Court of Appeals. In affirming a U.S. district-court decision that a debtor's pre-court approved fee arrangement with its special litigation counsel was subject to section 328, the Second Circuit, in Riker, Danzig, Scherer, Hyland & Perretti v. Official Comm. of Unsecured Creditors (In re Smart World Technologies, LLC), 552 F.3d 228 (2d Cir. 2009), adopted a "totality of the circumstances" standard for determining whether a professional retention has been preapproved pursuant to section 328(a) of the Bankruptcy Code.

Chapter 11 Plans

The ability to sell assets during the course of a chapter 11 case without incurring the transfer taxes customarily levied on such transactions outside bankruptcy often figures prominently in a potential debtor's strategic bankruptcy planning. However, the circumstances under which a sale and related transactions (e.g., mortgage recordation) qualify for the tax exemption, which is provided by section 1146(a) of the Bankruptcy Code, have been a focal point of vigorous dispute in bankruptcy and appellate courts for more than a quarter century. This resulted in a split on the issue among the federal circuit courts of appeal.

The Supreme Court resolved the conflict when it handed down its long-awaited ruling in 2008. By a 7-2 majority, the Court ruled in State of Florida Dept. of Rev. v. Piccadilly Cafeterias, Inc. (In re Piccadilly Cafeterias, Inc.), 128 S. Ct. 2326 (2008), that section 1146(a) of the Bankruptcy Code establishes "a simple, bright-line rule" limiting the scope of the transfer tax exemption to "transfers made pursuant to a Chapter 11 plan that has been confirmed." Still, judging by a decision handed down in 2009 by a New York bankruptcy court, the Supreme Court's ruling in Piccadilly did not end the debate on chapter 11's transfer tax exemption. In In re New 118th Inc., 398 B.R. 791 (Bankr. S.D.N.Y. 2009), the court ruled that the sale of a chapter 11 debtor's rental properties, which had been approved prior to confirmation of a plan but would not close until after confirmation, was exempt from transfer tax under section 1146(a) because the sale was necessary to the plan's consummation, as administrative claims could not have been paid without the sale proceeds.

"Give-ups" by senior classes of creditors to achieve confirmation of a plan have become an increasingly common feature of the chapter 11 process, as stakeholders strive to avoid disputes that can prolong the bankruptcy case and drain estate assets by driving up administrative costs. Under certain circumstances, however, senior-class "gifting" or "carve-outs" from senior-class recoveries may violate a well-established bankruptcy principle commonly referred to as the "absolute priority rule," a maxim predating the enactment of the Bankruptcy Code that established a strict hierarchy of payment among claims of differing priorities.

The rule's continued application under the current statutory scheme has been a magnet for controversy. The "gift or graft" debate is likely to endure, given the prominence of the practice in high-profile chapter 11 cases. Even so, a ruling handed down by a New York bankruptcy court in 2009 indicates that senior-class gifting continues to be an important catalyst toward achieving confirmation of a chapter 11 plan. In In re Journal Register Co., 407 B.R. 520 (Bankr. S.D.N.Y. 2009), the court held that proposed distributions to trade creditors from recoveries that would otherwise go to a senior secured creditor did not run afoul of the absolute priority rule because there was no intervening dissenting class of creditors and the distributions were not being made "under the plan."

In In re Ion Media Networks, Inc., 2009 WL 4047995 (Bankr. S.D.N.Y. Nov. 24, 2009), a New York bankruptcy court considered whether the absolute priority rule was violated by a chapter 11 plan that preserved intercompany equity interests to keep in place affiliated debtors' corporate structures without paying in full the guarantee claims of second-lien lenders. The court ruled that, even if the second-lien lenders had not been precluded from objecting to confirmation under the express terms of an intercreditor agreement, to the extent that preservation of the intercompany equity interests could be deemed an allocation of value to interest holders whose priority should be junior to the guarantee claims of the second-lien lenders, such a "carve-out" of property belonging to the first-lien lenders is permissible under the "gifting" doctrine and does not implicate the absolute priority rule.

For decades now, chapter 11 plans have included "third-party releases," whereby creditors are deemed to have released certain nondebtor parties (such as officers, directors, or affiliates of the debtor) upon the confirmation and effectiveness of the plan. For an equally long period, such third-party releases have engendered controversy in the courts and elsewhere as to when, if ever, such releases are appropriate. The U.S. Supreme Court had an opportunity in 2009 to resolve this long-running dispute in connection with releases contained in the confirmed chapter 11 plan of Johns-Manville Corp. (see, below, the "From the Top" discussion of The Travelers Indemnity Co. v. Bailey, 129 S. Ct. 2195 (2009), and Common Law Settlement Counsel v. Bailey, 129 S. Ct. 2195 (2009)) but skirted the issue in its ruling.

The Seventh Circuit Court of Appeals weighed in on this question in 2009 in In re Ingersoll, Inc., 562 F.3d 856 (7th Cir. 2009), ruling that section 105(a) of the Bankruptcy Code, which empowers a bankruptcy court to "issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of [the Bankruptcy Code]," authorizes a bankruptcy judge to confirm a plan providing for the release of the claims of a noncreditor against a nondebtor third party. According to the court of appeals, this power is limited to unusual situations where the release is essential to the operation of the plan and requires fair and adequate notice to the person whose claims are being released. The court, however, added a cautionary addendum to its discussion, observing that "[w]e are not saying that a bankruptcy plan purporting to release a claim like Miller's is always—or even normally—valid," but passed muster "[i]n the unique circumstances of this case."

Examining the relatively rare circumstance where stockholder interests are preserved rather than extinguished under a chapter 11 plan, the Fifth Circuit Court of Appeals, as a matter of apparent first impression, held in Schaefer v. Superior Offshore International Inc. (In re Superior Offshore International Inc.), 2009 WL 4798851 (5th Cir. Dec. 14, 2009), that the Bankruptcy Code does not require a chapter 11 plan to provide an explicit conversion mechanism between subordinated securities claims and equity interests. Thus, according to the court, the bankruptcy court's confirmation of a plan that called for pro rata treatment of a class of subordinated securities claims and a class of equity interests provided adequate specificity and complied with section 1123(a)(3) of the Bankruptcy Code.

In addressing asbestos liabilities, whether in bankruptcy or otherwise, disputes between the company and its insurers are common, if not inevitable. In In re Federal-Mogul Global Inc., 385 B.R. 560 (Bankr. D. Del. 2008), a Delaware bankruptcy court considered whether assignment of asbestos insurance policies to an asbestos trust established under section 524(g) of the Bankruptcy Code is valid and enforceable against the insurers, notwithstanding anti-assignment provisions in (or incorporated in) the policies and applicable state law. Section 524(g) of the Bankruptcy Code establishes a procedure for dealing with future personal-injury asbestos claims against a chapter 11 debtor. Almost every section 524(g) trust is funded at least in part by the proceeds of insurance policies that the debtor has in effect to cover asbestos or other personal-injury claims. The debtor's plan of reorganization typically provides for an assignment of both the policies and their proceeds to the trust. Such an assignment, however, may violate the express terms of the policies or applicable nonbankruptcy law.

Despite a Ninth Circuit ruling that could be interpreted to support the insurers' position, Pac. Gas & Elec. Co. v. California ex rel. California Dept. of Toxic Substances Control, 350 F.3d 932 (9th Cir. 2003), the Federal-Mogul bankruptcy court held that assignment of the insurance policies was proper because the Bankruptcy Code preempts any contrary contractual or state-law anti-assignment provisions. In 2009, the Delaware district court affirmed the ruling on appeal in In re Federal-Mogul Global, Inc., 402 B.R. 625 (D. Del. 2009), for substantially the same reasons articulated by the bankruptcy court. Among other things, the district court rejected the argument that section 1123(a)'s provisions regarding the contents of chapter 11 plans are limited to contrary provisions under "applicable nonbankruptcy law" and do not cover private contracts or agreements.

In the context of nonconsensual, or "cram-down," confirmation of a chapter 11 plan, section 1129(b)(2)(A) provides three alternative ways to achieve confirmation over the objection of a dissenting class of secured claims: (i) the secured claimant's retention of its liens and receipt of deferred cash payments equal to the value, as of the plan effective date, of its secured claim; (ii) the sale of the collateral free and clear of all liens (subject to the secured creditor's right to credit-bid), with attachment to the proceeds of the secured creditor's liens and treatment of the liens under option (i) or (iii); or (iii) the realization by the secured creditor of the "indubitable equivalent" of its claim.

In In re Pacific Lumber Co., 584 F.3d 229 (5th Cir. 2009), the Fifth Circuit considered whether section 1129(b)(2)(A)(ii) is the only avenue to confirmation of a plan under which the collateral securing the claims of a dissenting secured class is to be sold. The court of appeals ruled that section 1129(b)(2)(A)(ii) does not always provide the exclusive means by which to confirm a reorganization plan where a sale of a secured party's collateral is contemplated. Rather, the Fifth Circuit held, where sale proceeds provide a secured creditor with the indubitable equivalent of its collateral, that confirmation of a plan is possible under section 1129(b)(2)(A)(iii). In addition, consistent with its conclusion that the sale transaction in the chapter 11 plan accomplished that result, the court rejected an argument by noteholders that confirmation was improper because they had not been afforded the opportunity to credit-bid their claims for the assets.

A Pennsylvania bankruptcy court reached a different conclusion in In re Philadelphia Newspapers, LLC, 2009 WL 3242292 (Bankr. E.D. Pa. Oct. 8, 2009), holding that the overall intent of sections 363, 1111, 1123, and 1129 of the Bankruptcy Code is to ensure that where an undersecured creditor's collateral is proposed to be sold, whether under section 363 or under a chapter 11 plan, the secured creditor is entitled to protect its rights in its collateral, either by making an election to have its claim treated as fully secured under section 1111(b) or by credit-bidding its debt under section 363(k). That ruling, however, was quickly reversed on appeal by the district court in In re Philadelphia Newspapers, LLC, 418 B.R. 548 (E.D. Pa. 2009). Consistent with the Fifth Circuit's ruling in Pacific Lumber, the district court held that if a cram-down chapter 11 plan proposing a sale of collateral provides a secured creditor with the indubitable equivalent of its claim under section 1129(b)(2)(A)(iii), the creditor does not have the right to credit-bid its claim, as it would under section 1129(b)(2)(A)(ii).

Reinstatement of secured claims under section 1129(b)(2)(A)(i) was the subject of a controversial ruling in 2009 by the New York bankruptcy court overseeing the chapter 11 cases of Charter Communications Inc., the fourth-largest cable-television operator in the U.S. Charter filed a prepackaged chapter 11 case in March 2009 in an effort to reduce its debt burden by approximately $8 billion by swapping new equity in the reorganized company for bondholder debt. Charter's chapter 11 plan provided for reinstatement of nearly $11.8 billion in first-lien debt over the objection of the first-lien lenders, who argued that the debt could not be reinstated due to the existence of incurable defaults.

In In re Charter Communications, 2009 WL 3841971 (Bankr. S.D.N.Y. Nov. 17, 2009), the bankruptcy court confirmed Charter's chapter 11 plan, ruling, among other things, that: (i) the proposed restructuring did not trigger a default under a "no change of control" requirement in the credit agreement of the kind that would prevent reinstatement of Charter's senior debt; and (ii) a cross-default provision in the credit agreement between Charter and its senior lenders that was part of a multilayered capital structure, which focused on the financial condition of designated holding companies, was necessarily concerned with Charter's financial condition, in light of the interdependent relationship existing between the companies, and was in the nature of an ineffective "ipso facto clause," the breach of which did not have to be cured as a prerequisite to reinstatement of Charter's senior debt. Charter's senior lenders appealed the ruling but were denied a stay of the bankruptcy court's confirmation order, which will likely moot any appeal.

Claims/Debt Trading

Participants in the multibillion-dollar market for distressed claims and securities had ample reason to keep a watchful eye on developments in the bankruptcy courts during each of the last four years. Controversial rulings handed down in 2005 and 2006 by the bankruptcy court overseeing the chapter 11 cases of failed energy broker Enron Corporation and its affiliates had traders scrambling for cover due to the potential for acquired claims/debt to be equitably subordinated or even disallowed, based upon the seller's misconduct. The severity of this cautionary tale was ultimately ameliorated on appeal in the late summer of 2007, when the district court vacated both of the rulings in In re Enron Corp., 379 B.R. 425 (S.D.N.Y. 2007), holding that "equitable subordination under section 510(c) and disallowance under section 502(d) are personal disabilities that are not fixed as of the petition date and do not inhere in the claim."

2008 proved to be little better in providing traders with any degree of comfort with respect to claim or debt assignments involving bankrupt obligors. In In re M. Fabrikant & Sons, Inc., 385 B.R. 87 (Bankr. S.D.N.Y. 2008), a New York bankruptcy court took a hard look for the first time at the standard transfer forms and definitions contained in nearly every bank-loan transfer agreement. The court ruled that a seller's reimbursement rights were transferred along with the debt, fortifying the conventional wisdom that transfer documents should be drafted carefully to spell out explicitly which rights, claims, and interests are not included in the sale.

The latest development in the bankruptcy claims-trading ordeal was the subject of a ruling handed down by the Second Circuit Court of Appeals in September 2009. Addressing the matter before it as an issue of first impression, the court of appeals held in ASM Capital, LP v. Ames Department Stores, Inc. (In re Ames Dept. Stores, Inc.), 582 F.3d 422 (2d Cir. 2009), that section 502(d) of the Bankruptcy Code does not mandate disallowance, either temporarily or otherwise, of administrative claims acquired from entities that allegedly received voidable transfers.

Committees

A Delaware bankruptcy court revisited a controversial issue in 2009 that highlights the increasingly significant role played by ad hoc committees (sometimes consisting of hedge funds and other "distress" investors) in chapter 11 cases. The decision addresses the strictures of Rule 2019 of the Federal Rules of Bankruptcy Procedure, which, among other things, requires disclosure by committee members of the acquisition dates and cost bases of their claims, information that some informal committee members are loath to disclose because revelation of the data may decrease their bargaining power. In In re Washington Mutual, Inc., 2009 WL 4363539 (Bankr. D. Del. Dec. 2, 2009), the court directed an informal group of noteholders to comply with Rule 2019, despite their contention that the group was merely a "loose affiliation" of like-minded creditors sharing costs, explaining that "[a]d hoc committees (which are covered by Rule 2019) are typically a ‘loose affiliation of creditors.' "

Guided by the bankruptcy court's "well-reasoned decision" on this issue in In re Northwest Airlines Corp., 363 B.R. 701 (Bankr. S.D.N.Y. 2007), the Delaware court concurred with the noteholders' position that Rule 2019 was intended to apply only to "a body that purports to speak on behalf of an entire class or broader group of stakeholders in a fiduciary capacity with the power to bind the stakeholders that are members of such a committee." However, the court faulted the noteholders' argument for being "premised on the erroneous assumption that the Group owes no fiduciary duties to other similarly situated creditors, either in or outside the Group." According to the court, case law suggests that members of a class of creditors "may, in fact, owe fiduciary duties to other members of the class." Still, the bankruptcy court demurred from elaborating on the point, stating merely that "[i]t is not necessary, at this stage, to determine the precise extent of fiduciary duties owed but only to recognize that collective action by creditors in a class implies some obligation to other members of that class."

Creditor Rights

Section 553 of the Bankruptcy Code provides, subject to certain exceptions, that the Bankruptcy Code "does not affect any right of a creditor to offset a mutual debt owing by such creditor to the debtor that arose before the commencement of the case under this title against a claim of such creditor against the debtor that arose before the commencement of the case." It is not uncommon for a seller or provider of services to a group of affiliated companies to obtain a contractual right to set off obligations owed by the seller or provider to one member of the group against amounts owed to the seller or provider by another member of the group. Such a setoff is typically referred to as a "triangular setoff."

Whether a triangular setoff satisfies the "mutuality requirement" of section 553 was addressed in an important ruling handed down in 2009 by a Delaware bankruptcy court. In In re SemCrude, L.P., 399 B.R. 388 (Bankr. D. Del. 2009), the court ruled that, absent piercing of the corporate veil or substantive consolidation of affiliated debtors' estates, the mutuality requirement precludes triangular setoffs in bankruptcy. If followed, SemCrude would eliminate triangular setoffs, at least where the contracts at issue are not subject to a Bankruptcy Code safe-harbor provision, such as those that apply to certain financial contracts. The safe-harbor provisions of the Bankruptcy Code suggest that, to the extent that triangular setoffs are being exercised with respect to affiliated entities covered by the safe harbor, the mutuality requirement of section 553(a) does not apply.

Cross-Border Bankruptcy Cases

October 17, 2009, marked the four-year anniversary of the effective date of chapter 15 of the Bankruptcy Code, which was enacted as part of the comprehensive bankruptcy reforms implemented under BAPCPA. Governing cross-border bankruptcy and insolvency cases, chapter 15 is patterned after the Model Law on Cross-Border Insolvency (the "Model Law"), a framework of legal principles formulated by the United Nations Commission on International Trade Law in 1997 to deal with the rapidly expanding volume of international insolvency cases. The Model Law has now been adopted in one form or another by 17 nations or territories. Chapter 15 filings remain relatively uncommon even four years after the U.S. enacted its version of the Model Law in 2005. Calendar years 2006, 2007, and 2008 saw 74, 42, and 76 chapter 15 filings, respectively. In the 2009 calendar year, 159 chapter 15 cases were filed in the U.S.

The jurisprudence of chapter 15 has evolved rapidly since 2005, as courts have transitioned in relatively short order from considering the theoretical implications of a new legislative regime governing cross-border bankruptcy and insolvency cases to confronting the new law's real-world applications. An important step in that evolution was the subject of a ruling handed down in 2009 by a Mississippi district court. In Fogerty v. Condor Guaranty, Inc. (In re Condor Insurance Limited (In Official Liquidation)), 411 B.R. 314 (S.D. Miss. 2009), the court held that, unless the representative of a foreign debtor seeking to avoid prebankruptcy asset transfers under either U.S. or foreign law first commences a case under chapter 7 or 11 of the Bankruptcy Code, a bankruptcy court lacks subject-matter jurisdiction to adjudicate the avoidance action.

Also in 2009, a Nevada bankruptcy court issued an order in In re Betcorp Ltd., 400 B.R. 266 (Bankr. D. Nev. 2009), recognizing the voluntary winding-up proceeding of an Australian company as a "foreign main proceeding" under chapter 15. The conclusion of the court that a voluntary winding-up process (which does not involve any court supervision) is a "proceeding" for the purposes of the Bankruptcy Code (and, by extension, the Model Law) provides authority for the proposition that other forms of non-court-sanctioned external administration of a company qualify as "proceedings," so long as the process at issue is undertaken in accordance with a statutory framework. Most relevant in the Australian context, this means that the voluntary administration process (a largely extrajudicial rough equivalent of chapter 11 of the Bankruptcy Code) is likely to be a "proceeding" for the purposes of chapter 15.

Although it has been largely overlooked in the evolving chapter 15 jurisprudence to date, the ability to sell a foreign debtor's assets under section 363(b) of the Bankruptcy Code is among the powers conferred upon the debtor's representative in a chapter 15 case. Only a handful of courts have addressed section 363 sales in chapter 15 in the short time since it was enacted. One of those that did so in 2009 was a New Jersey bankruptcy court presiding over a chapter 15 case filed on behalf of a company subject to insolvency proceedings in the British Virgin Islands. In In re Grand Prix Associates Inc., 2009 WL 1850966 (Bankr. D.N.J. June 26, 2009), the court granted the foreign representative's motion to sell limited-partnership interests held by the debtor under section 363(b) free and clear of competing interests and approved a master settlement agreement among the debtor and various creditors under Rule 9019 of the Federal Rules of Bankruptcy Procedure.

Whether the protections afforded under section 365(n) of the Bankruptcy Code to licensees of intellectual property operate in a chapter 15 case filed on behalf of a foreign debtor licensor was the subject of an important ruling handed down in 2009 by a Virginia bankruptcy court. In In re Qimonda AG, 2009 WL 4060083 (Bankr. E.D. Va. Nov. 19, 2009), the court had previously recognized the licensor's pending German insolvency proceeding as a "foreign main proceeding" under chapter 15. It later entered a supplemental order under section 1521 of the Bankruptcy Code providing, among other things, that section 365 would apply in the chapter 15 case. Certain U.S. licensees then invoked section 365(n) in an effort to retain their rights under intellectual property license agreements with the debtor.

In response, the debtor's foreign representative asked the court to modify the supplemental order to clarify that section 365 did not apply. Instead, the representative argued, rights under the licenses should be determined in accordance with the German Insolvency Code, which does not provide the licensee protections contained in section 365(n). The bankruptcy court agreed, modifying its prior order to exclude section 365. According to the court:

The principal idea behind chapter 15 is that the bankruptcy proceeding be governed in accordance with the bankruptcy laws of the nation in which the main case is pending. In this case, that would be the German Insolvency Code. Ancillary proceedings such as the chapter 15 proceeding pending in this court should supplement, but not supplant, the German proceeding.

The ruling underscores that, when an intellectual property licensor is based outside the U.S., section 365(n) will not protect U.S. licensees, even if the license covers U.S.-issued patents and a chapter 15 case is commenced on behalf of the licensor.

Discharge

Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") 30 years ago to hold "responsible parties" liable for remediating pollution. The Environmental Protection Agency ("EPA") can clean up a hazardous waste site and seek monetary reimbursement from the responsible party. Alternatively, the EPA can issue an administrative order compelling the responsible party to clean up the waste site itself. A number of environmental statutes complement CERCLA, including the Resource Conservation and Recovery Act ("RCRA"), which applies principally to manufacturing facilities, on-site storage, and disposal of hazardous materials and, as amended in 1984, regulates underground storage tanks.

The shared purpose of CERCLA and RCRA is fundamentally at odds with the Bankruptcy Code's overriding goal of giving debtors a fresh start by liberally allowing the discharge of debts. In most cases, when a responsible party files for bankruptcy, the cleanup costs incurred by the responsible party are discharged. This proposition was first articulated by the U.S. Supreme Court in its 1985 ruling in Ohio v. Kovacs, 469 U.S. 274 (1985), where the court held that the monetary obligation to pay for environmental cleanup costs is a dischargeable claim in bankruptcy; it was reaffirmed in the Second Circuit's 1991 decision in In re Chateaugay Corp., 944 F.2d 997 (2d Cir. 1991), where the court of appeals acknowledged that CERCLA and the Bankruptcy Code have competing objectives but concluded that the broad, sweeping discharge language in the Bankruptcy Code was intended to override many laws, such as CERCLA, that would favor creditors.

Still, a ruling handed down in 2009 by the Seventh Circuit Court of Appeals serves as a reminder that not all environmental claims can be discharged in bankruptcy. In U.S. v. Apex Oil Co., Inc., 579 F.3d 734 (7th Cir. 2009), a district court previously had entered an injunction order under RCRA, requiring Apex Oil to remediate property contaminated by its corporate predecessor, compliance with which was estimated to cost approximately $150 million. On appeal to the Seventh Circuit, Apex Oil argued that the government's injunction claim was, in fact, a monetary claim because of the cost associated with compliance and that it should have been discharged in Apex Oil's earlier chapter 11 bankruptcy. The Seventh Circuit disagreed, holding that only claims that give rise to a right to payment because an injunction cannot be executed are dischargeable under the Bankruptcy Code, rather than injunction claims that would merely result in the imposition of costs on a defendant. The ruling highlights the significance of the law under which remedial action is required. For example, unlike CERCLA, which allows the government to recover remediation costs in the event a responsible party fails to remediate, RCRA does not provide for cost recovery in lieu of specific performance of an equitable remedy.

Executory Contracts and Unexpired Leases

The devastating consequences of an enduring global recession for businesses and individuals alike were writ large in headlines worldwide throughout 2009, as governments around the globe scrambled to implement assistance programs designed to jump-start stalled economies. Less visible amid the carnage wrought among the financial institutions, automakers, airlines, retailers, newspapers, home builders, homeowners, and suddenly laid-off workers was the plight of the nation's cities, towns, and other municipalities. A reduction in the tax base, caused by plummeting real estate values, and a high incidence of mortgage foreclosures, questionable investments in derivatives, and escalating costs (including the higher cost of borrowing due to the meltdown of the bond mortgage industry and the demise of the market for auction-rate securities) combined to create a maelstrom of woes for U.S. municipalities.

One option available to municipalities teetering on the brink of financial ruin is chapter 9 of the Bankruptcy Code, a relatively obscure legal framework that allows an eligible municipality to "adjust" its debts by means of a plan of adjustment that is in many respects similar to the plan of reorganization devised by a debtor in a chapter 11 case. However, due to constitutional concerns rooted in the Tenth Amendment's preservation of each state's individual sovereignty over its internal affairs, the resemblance between chapter 9 and chapter 11 is limited. One significant difference pertaining to a municipal debtor's ability to modify or terminate labor contracts with unionized employees was the subject of an important ruling handed down in 2009 by a California bankruptcy court. In In re City of Vallejo, 403 B.R. 72 (Bankr. E.D. Cal. 2009), the court ruled that section 1113 of the Bankruptcy Code, which delineates the circumstances under which a chapter 11 debtor can reject a collective bargaining agreement, does not apply in chapter 9, such that a municipal debtor may reject a labor agreement without complying with the added procedural requirements of section 1113. By order dated September 4, 2009, the bankruptcy court authorized the City of Vallejo to reject its labor contract with the International Brotherhood of Electrical Workers.

Section 365(d)(3) of the Bankruptcy Code requires current payment of a debtor's postpetition obligations under a lease of nonresidential real property pending the decision to assume or reject the lease. However, if a debtor fails to pay rent due at the beginning of a month and files for bankruptcy protection some time after the rent payment date—thereby creating a "stub rent" obligation during the period from the petition date to the next scheduled rent payment date—it is unclear how the landlord's claim for stub rent should be treated. A Delaware bankruptcy court considered this issue in In re Sportsman's Warehouse, Inc., 2009 WL 2382625 (Bankr. D. Del. Aug. 3, 2009). In keeping with the Third Circuit's ruling in CenterPoint Properties v. Montgomery Ward Holding Corp. (In re Montgomery Ward Holding Corp.), 268 F.3d 205 (3d Cir. 2001), the bankruptcy court held that stub rent claims need not be paid under section 365(d)(3) because the obligation to pay arose prepetition. However, "the landlord may have an allowed administrative claim under section 503(b) for the debtors' use and occupancy of the premises during the stub rent period as an actual and necessary expense of preserving the estate." In addition, the court ruled that: (i) real estate taxes that related to the prepetition period, but were invoiced postpetition, prior to rejection, were not entitled to administrative priority because the debtor's obligation to pay such taxes under the lease did not arise until after rejection; and (ii) real estate taxes accruing from the petition date through the date the leases were rejected, which would not become due and payable under the leases until after rejection, were entitled to administrative priority only to the extent of any benefit to the estate.

Much of the case law regarding the impact of a bankruptcy filing upon executory contracts and unexpired leases addresses the ability of a bankruptcy trustee or DIP to reject, assume, and/or assign a contract and the ensuing ramifications. Less frequently discussed in the extensive body of bankruptcy jurisprudence regarding executory contracts are the consequences of anticipatory repudiation of an agreement that results in its rejection. A New York district court had an opportunity in 2009 to consider this question. In In re Asia Global Crossing, Ltd., 404 B.R. 335 (S.D.N.Y. 2009), the court ruled that, when a contract is repudiated in a bankruptcy case, the nonbreaching party need not demonstrate its readiness to perform in order to recover its deposit under the contract by way of restitution, but must do so to establish a claim for expectation damages for lost profits.

In evaluating a motion to assume or reject an executory contract or unexpired lease, courts generally apply a "business judgment" standard. That standard presupposes that the DIP or trustee will reject contracts that are detrimental to the estate, and absent a showing of bad faith or an abuse of business discretion, the debtor's business judgment will not be second-guessed by the court. A New York bankruptcy court was called upon in 2009 to decide whether a different standard should have applied to automaker Chrysler's request to reject franchise agreements with nearly 800 of its dealers. In In re Old Carco LLC, 406 B.R. 180 (Bankr. S.D.N.Y. 2009), the court ruled that the business judgment test applied, rejecting the dealers' contention that a heightened standard should apply because state law provides special protections for franchise agreements.

Financial Contracts

Under section 548(a) of the Bankruptcy Code, a bankruptcy trustee may seek to avoid transfers of property that are made within two years of the filing of a bankruptcy petition, when such transfers either are effected with the intent to defraud creditors or are constructively fraudulent, because the debtor was insolvent at the time of the transfer (or was rendered insolvent as a consequence thereof) and did not receive reasonably equivalent value in exchange.

However, special protections are provided in the Bankruptcy Code for "financial contracts" to avoid the potentially devastating consequences that could occur if the insolvency of one firm were allowed to spread to other market participants. Accordingly, section 546(g) provides a "safe harbor" from constructive fraud claims under section 548(a)(1)(B) for payments made to "swap participants" under "swap agreements." Further, sections 548(c) and 548(d)(2)(D) of the Bankruptcy Code provide swap participants with a defense from both actual and constructive fraud claims to the extent the transferee provided value in good faith.

Congress amended the Bankruptcy Code's financial contract provisions in 2005 to clarify, augment, and expand the scope of these protections, which were further refined in the Financial Netting Improvements Act of 2006. As part of these amendments, the term "commodity forward agreement" was added to the definition of "swap agreement" under the Bankruptcy Code. However, Congress did not define the term "commodity forward agreement" in the Bankruptcy Code, and no court has yet provided a definition.

The Fourth Circuit Court of Appeals came close to doing so in 2009 in Hutson v. E.I. du Pont de Nemours & Co. (In re National Gas Distributors, LLC), 556 F.3d 247 (4th Cir. 2009), ruling that natural gas supply contracts with end users are not precluded as a matter of law from constituting "swap agreements" under the Bankruptcy Code. Reversing a bankruptcy court's holding that "a ‘commodity forward agreement' has to be traded in a financial market and cannot involve the physical delivery of the commodity to an end user," the Fourth Circuit ruled that a factual inquiry was required to determine whether the natural gas supply contracts at issue could be characterized as "swap agreements" and therefore entitled to the safe-harbor protections from the automatic stay and avoidance powers of a bankruptcy trustee. The Fourth Circuit declined the opportunity to fashion a definition for "commodity forward agreements," but the court did set forth several "nonexclusive elements" as guidance for what it believes the statutory language requires for a "commodity forward agreement."

Good-Faith Filing Requirement/Bankruptcy Strategic Planning

The availability of credit in commercial real estate-based lending has depended in large part for more than 10 years on the commercial mortgage-backed securities ("CMBS") market. CMBS loans are generally secured only by the subject real property and make less necessary (formerly prevalent) guarantees or other credit enhancements from parent companies or other affiliated entities. The CMBS structure was an important catalyst for increased property values, as lenders and investors rushed to pour huge amounts of capital into the CMBS market.

The "bankruptcy-remote structure" is a critical feature of the CMBS paradigm. That structure is designed to minimize the risk that a borrower will become a debtor in bankruptcy and that its assets and liabilities will be consolidated with those of related entities. The risk of a voluntary bankruptcy filing by a "special purpose entity" ("SPE") is limited by the requirement that independent directors or managers must vote to approve any bankruptcy filing by or on behalf of the SPE. In addition, bankruptcy-remote structures minimize the risk of an involuntary bankruptcy filing against an SPE by its creditors by restricting the amount of secured and unsecured debt that the SPE can incur. Finally, the risk of substantive consolidation can be limited by requiring the SPE to conduct its operations in a manner intended to maintain its separate corporate identity.

An important and highly anticipated ruling handed down in 2009 by a New York bankruptcy court tested the integrity of the bankruptcy-remote structure for the first time in many years by driving home the maxim that "bankruptcy-remote" does not mean "bankruptcy-proof." In In re General Growth Properties, Inc., 409 B.R. 43 (Bankr. S.D.N.Y. 2009), the court denied a motion by several secured lenders to dismiss the chapter 11 cases of several subsidiaries of General Growth Properties, Inc. General Growth is a publicly traded real estate investment trust and the ultimate parent of approximately 750 wholly owned subsidiaries, joint-venture subsidiaries, and affiliates, 166 of which filed for chapter 11 in April 2009 together with the General Growth parent company even though they were paying their debts as they came due. In denying the lenders' request, the bankruptcy court ruled that the chapter 11 filings should not be dismissed as having been undertaken in "bad faith" even though the SPEs had strong cash flows, no debt defaults, and bankruptcy-remote structures. Importantly, the court held that it could consider the interests of the entire group of affiliated debtors as well as each individual debtor in assessing the legitimacy of the chapter 11 filings.

The Third Circuit Court of Appeals also had an opportunity late in 2009 to examine chapter 11's good-faith filing requirement, ruling in In re 15375 Memorial Corp. v. Bepco, L.P., 2009 WL 4912136 (3d Cir. Dec. 22, 2009), that the debtor filed for chapter 11 in bad faith because the filing was motivated not by the legitimate bankruptcy purpose of preserving or maximizing the value of the estate, but as a litigation tactic and a means of minimizing a related company's financial exposure.

Pension Plans

Termination of one or more defined-benefit pension plans has increasingly become a significant aspect of a debtor employer's reorganization strategy under chapter 11, providing a way to contain spiraling labor costs and facilitate the transition from defined-benefit-based programs to defined-contribution programs such as 401(k) plans. However, when the Employee Retirement Income Security Act ("ERISA") was amended in 2006 to impose a "termination premium" payable upon the "distress termination" of a pension plan, it was unclear to what extent chapter 11 would continue to be beneficial to employers intent upon using bankruptcy to contain spiraling labor costs.

That issue has now been tested in the courts. A ruling handed down in 2009 as a matter of first impression by the Second Circuit Court of Appeals indicates that, if followed by other courts, terminating a pension plan in bankruptcy will be more expensive after the 2006 reforms to ERISA. In Pension Ben. Guar. Corp. v. Oneida Ltd., 562 F.3d 154 (2d Cir. 2009), the court of appeals held that the termination premium payable upon a distress pension plan termination in bankruptcy becomes payable only upon the terminating employer's receipt of a discharge, such that any claim based upon the premiums cannot be treated on a par with the claims of the debtor's prepetition unsecured creditors. The ruling has broad-ranging implications for all chapter 11 debtors, including those in troubled industries, such as the automotive, airline, home construction, and retail sectors, that are burdened with unsustainable "legacy" costs associated with pension obligations.

From the Top

Bankruptcy and U.S. Supreme Court watchdogs awaiting dispositive resolution of a long-standing circuit split on the power of bankruptcy courts to enjoin litigation against nondebtors under a chapter 11 plan were in for a disappointment when the Supreme Court finally handed down its ruling on June 18, 2009, in two consolidated appeals involving asbestos-related claims directed against former chapter 11 debtor Johns-Manville Corporation, the leading producer of asbestos products in the U.S. for more than 50 years, and several of Manville's insurers.

In The Travelers Indemnity Co. v. Bailey, 129 S. Ct. 2195 (2009), and Common Law Settlement Counsel v. Bailey, 129 S. Ct. 2195 (2009), the Court, which had agreed to hear the cases in December 2008 to resolve a split in the circuit courts of appeal on the issue, ruled that the Second Circuit Court of Appeals erred in its 2008 decision reevaluating the bankruptcy court's exercise of jurisdiction in 1986, when it entered an order confirming Manville's chapter 11 plan. The chapter 11 plan, which established a trust to pay all asbestos claims against Manville, and the bankruptcy court order confirming it, released Travelers and the other insurers from all liabilities and enjoined all litigation against Travelers based upon asbestos claims against Manville, channeling all such claims to the trust.

Writing for the 7-2 majority, however, Justice David H. Souter noted that the court was not resolving whether a bankruptcy court in 1986, or today, could "properly enjoin claims against nondebtor insurers that are not derivative of the debtor's wrongdoing" or whether any particular party is bound by the bankruptcy court's 1986 confirmation order. A channeling injunction of the sort issued by the bankruptcy court in 1986, Justice Souter explained, would have to be measured against the requirements of section 524(g) of the Bankruptcy Code, which Congress added in 1994 precisely to address this issue. Thus, the circuit split on this controversial and important issue continues.

On November 2, 2009, the Supreme Court granted certiorari in Hamilton v. Lanning, 130 S. Ct. 487 (2009), where it will consider, in calculating a chapter 13 debtor's "projected disposable income" during the chapter 13 plan period, whether the bankruptcy court may consider evidence suggesting that the debtor's income or expenses during that period are likely to be different from the debtor's income or expenses during the prebankruptcy period. Oral argument is not yet scheduled for this case.

On November 3, 2009, the Supreme Court heard oral argument in Schwab v. Reilly, 129 S. Ct. 2049 (2009), where it will decide, among other things, whether a chapter 7 trustee who does not lodge a timely objection to a debtor's exemption of personal property may nevertheless sell the property if he later learns that the property value exceeds the amount of the claimed exemption. The Third Circuit Court of Appeals ruled in In re Reilly, 534 F.3d 173 (3d Cir. 2008), that, where the debtor indicates the intent to exempt her entire interest in given property by claiming an exemption of its full value and the trustee does not object in a timely manner, the debtor is entitled to the property in its entirety.

The Court heard oral argument on December 1 in the last two bankruptcy cases of 2009. In United Student Aid Funds Inc. v. Espinosa, 129 S. Ct. 2791 (2009), the Court is examining whether the Due Process Clause of the Fifth Amendment is violated if a chapter 13 debtor gives notice by mail to a lender that a student loan will be paid under a plan and then discharged, rather than commencing an adversary proceeding seeking a determination that the loan is dischargeable absent payment in full upon a showing of "undue hardship." In Milavetz, Gallop & Milavetz, P.A. v. U.S., 129 S. Ct. 2766 (2009), and U.S. v. Milavetz, Gallop & Milavetz, P.A., 129 S. Ct. 2769 (2009), the Supreme Court agreed to review an appeals-court decision from September 2008 that invalidated part of the 2005 bankruptcy reforms prohibiting lawyers from advising their clients to incur more debt in anticipation of a bankruptcy filing. The Eighth Circuit Court of Appeals ruled that new section 526(a)(4) of the Bankruptcy Code violates the First Amendment's right to freedom of speech by preventing "attorneys from fulfilling their duty to clients to give them appropriate and beneficial advice." In addition to this issue, the Supreme Court will decide whether the court of appeals correctly held that the 2005 amendments do not violate the First Amendment by requiring bankruptcy lawyers to identify themselves in their advertising as "debt relief agencies."

After granting a temporary stay of the bankruptcy court's May 31, 2009, order approving the sale of the bulk of U.S. automaker Chrysler's assets to a consortium led by Italian automaker Fiat SpA on June 7, the Supreme Court on June 9, in an unsigned, two-page ruling, Indiana State Police Pension Trust v. Chrysler LLC, 129 S. Ct. 2275 (2009), held that certain Indiana pension and construction funds failed to meet the standards for a stay pending appeal of the sale order. The court did not decide the merits of the attempted appeal and said the stay ruling applied to "this case alone." The sale transaction closed on June 10, 2009. Having verbally affirmed on appeal the bankruptcy court's order approving the sale under section 363(b) of the Bankruptcy Code on June 5, the Second Circuit Court of Appeals issued its written opinion on August 5, 2009, in In re Chrysler LLC, 576 F.3d 108 (2d Cir. 2009) (discussed above in the "Bankruptcy Asset Sales" section). However, in a development that created a substantial amount of confusion, the Supreme Court issued a summary disposition of the appeal from the Second Circuit's opinion on December 14, 2009. In Indiana State Police Pension Trust v. Chrysler LLC, 2009 WL 2844364 (Dec. 14, 2009), the high court vacated the Second Circuit's judgment and remanded the case below with instructions to dismiss the appeal as moot, presumably because the sale had already been consummated. Vacatur means that the ruling is deprived of all precedential value. Thus, whether the significant pronouncements of the Second Circuit concerning section 363(b) sales can be relied on in other cases is open to dispute.

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