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Chapter 11 Unveiled

A comprehensive exploration of the United States Bankruptcy Code's Chapter 11, detailing its processes, implications, and legal framework.

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Chapter 11 Overview

Legal Framework

Chapter 11 of the United States Bankruptcy Code (Title 11 of the U.S. Code) provides a mechanism for the reorganization of businesses and, less commonly, individuals. It is primarily utilized by corporate entities seeking to restructure their debts and operations to continue as a going concern.

Reorganization vs. Liquidation

Unlike Chapter 7, which mandates the liquidation of assets, Chapter 11 focuses on rehabilitation. While liquidation can occur under Chapter 11, its core purpose is to allow a debtor to propose and confirm a plan of reorganization, enabling the business to emerge from bankruptcy with a restructured financial and operational framework.

Court Oversight

Chapter 11 proceedings are overseen by federal bankruptcy courts. The debtor typically remains in control of its business operations as a "debtor in possession" (DIP), subject to court supervision and the jurisdiction of the court throughout the process.

Key Features of Reorganization

Debtor in Possession (DIP)

In most Chapter 11 cases, the existing management continues to operate the business as a debtor in possession. This allows for continuity and leverages existing knowledge, though a trustee may be appointed for cause.

DIP Financing

Debtors in possession can obtain new financing, often with priority status, to fund operations during the bankruptcy process. This is crucial for maintaining business viability and facilitating reorganization.

Contract Rejection

Chapter 11 provides mechanisms for the debtor to reject or cancel burdensome executory contracts and unexpired leases, subject to court approval, allowing for the shedding of unfavorable obligations.

The Reorganization Plan

Purpose of the Plan

A Chapter 11 plan is a comprehensive agreement among stakeholdersโ€”the debtor, creditors, and equity holdersโ€”outlining how the business will be restructured and debts will be handled. It is the central document guiding the case towards resolution.

Exclusivity Periods

Typically, the debtor has an exclusive period (initially 120 days, extendable) to propose a plan. If the debtor fails to do so, or if confirmation is not achieved within a subsequent period (initially 180 days), other parties in interest may propose competing plans.

Creditor Acceptance

For a plan to be confirmed, it generally requires acceptance by classes of creditors and equity holders whose rights are impaired by the plan. Acceptance thresholds are typically a majority in number and two-thirds in amount of claims voting.

Plan Confirmation

Court Approval

The bankruptcy court must approve a disclosure statement providing adequate information for creditors to make an informed decision about the plan before solicitation of votes. The court then holds a confirmation hearing.

Feasibility and Good Faith

Confirmation requires the court to find that the plan complies with bankruptcy law, was proposed in good faith, and is feasibleโ€”meaning the debtor is likely to succeed in its reorganization efforts without further need for bankruptcy proceedings.

Cramdown

Even if a class of creditors votes against the plan, the court may still confirm it if the plan meets "cramdown" requirements: it must not discriminate unfairly against that class and must be fair and equitable to them.

Automatic Stay

Protection from Creditors

Upon filing a Chapter 11 petition, an automatic stay immediately goes into effect. This injunction halts most collection actions, lawsuits, and foreclosures against the debtor or its property, providing breathing room for reorganization.

Relief from Stay

Creditors can petition the court for relief from the automatic stay if they can demonstrate cause, such as lack of adequate protection for their interest in collateral or if the debtor is not meeting its obligations.

Executory Contracts

Assumption or Rejection

Section 365 of the Bankruptcy Code allows the debtor-in-possession to assume (continue) or reject (terminate) executory contracts and unexpired leases. This power is critical for shedding unprofitable agreements.

Industry Impact

The ability to reject contracts, particularly labor agreements, has been a significant feature of Chapter 11 filings in industries like airlines, leading to debates about its impact on labor relations and corporate governance.

Priority of Claims

Administrative Expenses

The actual and necessary expenses incurred to preserve the bankruptcy estate during the Chapter 11 case are paid first. This includes costs of administration and professional fees.

Secured vs. Unsecured

Secured creditors, whose claims are backed by collateral, are generally paid before unsecured creditors. Unsecured claims are then paid according to statutory priorities, such as employee wages and taxes, before general unsecured claims.

Subchapter V

Small Business Reorganization Act (SBRA)

Added in 2019, Subchapter V streamlines Chapter 11 for small businesses. It aims to expedite procedures, reduce costs, and increase the likelihood of successful reorganization.

Key Provisions

Subchapter V reserves plan proposal rights for the debtor, mandates a Subchapter V trustee to facilitate the process, eliminates creditor committees, and allows owners to retain equity if the plan is fair and equitable.

Strategic Considerations

Time and Cost

Chapter 11 proceedings can be lengthy and expensive, potentially limiting the chances of success, especially during economic downturns when DIP financing may be scarce.

Pre-packaged Filings

A "pre-packaged" bankruptcy involves negotiating and obtaining creditor approval for a reorganization plan *before* filing Chapter 11. This can significantly expedite the process and reduce costs.

Industry Impact

The airline industry has frequently utilized Chapter 11, often to restructure labor contracts and debt. This has led to significant debate about the use of bankruptcy as a strategic tool.

Statistics and Trends

Filing Frequency

Chapter 11 filings have seen fluctuations over time. Some studies suggest a decline in traditional filings may be linked to an increase in state-law alternatives, while others point to classification issues in reporting.

Largest Cases

The scale of Chapter 11 cases can be immense. Historically, major financial institutions and corporations like Lehman Brothers, Washington Mutual, and General Motors have filed, involving hundreds of billions of dollars in assets.

Company Filing Date Assets (Pre-filing) Assets (Adjusted to 2012)
Lehman Brothers Holdings Inc. 15 Sep 2008 $639.06B $933B
Washington Mutual 26 Sep 2008 $327.91B $479B
Worldcom Inc. 21 Jul 2002 $103.91B $182B
General Motors Corp. 1 Jun 2009 $82.30B $121B
CIT Group 1 Nov 2009 $71.02B $104B
Enron Corp. 2 Dec 2001 $63.39B $113B
Conseco, Inc. 18 Dec 2002 $61.39B $107B
MF Global 31 Oct 2011 $41.00B $57.3B
Chrysler LLC 30 Apr 2009 $39.30B $57.6B
Texaco, Inc. 12 Apr 1987 $35.89B $99.3B

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References

References

  1.  11ย U.S.C.ย ร‚ยงย 1129
  2.  11ย U.S.C.ย ร‚ยงย 1107
  3.  11ย U.S.C.ย ร‚ยงย 1121
A full list of references for this article are available at the Chapter 11, Title 11, United States Code Wikipedia page

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