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Chapter 11 Reform or Re-Form? ABI Proposes Wholesale Changes to Bankruptcy Law

Extra Extra Read All About It. It was a cataclysmic weekend in college football for the Big 12 conference. The college football playoff committee elevated the one-loss Ohio State Buckeyes (Big 10) into the fourth and final slot in the inaugural College Football Playoff, taming a one-loss Baylor Bears (Big 12) sloth and a one-loss TCU Horned Frogs (Big 12) colony in the process. Some naysayers may look to the Big 12′s soft schedules and the absence of a league tiebreaker game as drivers of the committee’s decision. Others may cite to the Buckeyes’ 59-0 drubbing of a Top 20 opponent in Saturday night’s Big 10 championship game as the deciding factor. Whatever the reason, on Sunday both Big 12 teams were left sitting on the sidelines to ponder what, if anything, they can do differently next year to win the hearts and minds of the key decision-makers. The Big 12 powers-that-be and other industry veterans will surely debate the question for some time.

Against the backdrop of college football hoopla this weekend, a bankruptcy committee was busy over the weekend preparing to launch its own report. That’s right sports fans, after years in the making the American Bankruptcy Institute (ABI) released this morning its highly anticipated commission report on reforming Chapter 11. Without further ado, readers can find the commission’s recommendations HERE.

The bankruptcy bar has run rampant with speculation for weeks about the eventual content of the report. Upon a cursory review, many of the recommendations will leave market participants and restructuring professionals wondering if the commission would prefer wholesale Chapter 11 re-form, even start from legislative scratch, rather than merely reform the existing statute around its edges. And while the commission’s recommendations, if adopted, would impact all Chapter 11 constituencies, the secured lending community in particular may be squarely in the cross-hairs. The recommended principles seek to, among other things, permit secured creditors to realize the reorganization value of their collateral (not necessarily tied to the principal amount of their secured claims) at the end of the case, but yet provide some value allocation to junior stakeholders when supported by the reorganization value. An end-run around the absolute priority rule for a touchdown!

Stay tuned. Once your Blogger-In-Chief and his cohort have fully digested the 400+ pages, we will can report back. Until then, one thing is clear: Just like the high-ranking officials of the Big 12, bankruptcy aficionados will surely debate the commission’s findings for some time.

© 2019 Bracewell LLP


About this Author

Mark Dendinger, financial restructuring, attorney, Bracewell law firm

Mark Dendinger is a member of the firm’s Financial Restructuring team.  Mr. Dendinger’s practice includes representation of hedge funds, institutional investors, private investment funds, leveraged finance participants, financial services companies, and other lenders in out-of-court restructurings, in-court proceedings, and distressed M&A transactions, both in the U.S. and internationally.  Mr. Dendinger also has maritime restructuring experience representing international shipping companies in U.S. Chapter 11 proceedings. 

Prior to...

Evan Flaschen, Financial Restructuring, Attorney, Bracewell law firm

Evan Flaschen is the chair of the Financial Restructuring Group at Bracewell LLP, described by Legal 500 as a "phenomenally committed team" that practices as a "seamless national firm" with "vast international experience." Who's Who Legal has named Evan as the 2015 "Most Highly Regarded Insolvency & Restructuring Individual in the World" who "is 'simply the best' according to our sources." His practice includes representation of many of the world's largest borrowers, institutional investors, private investment funds, Chapter 11 debtors and financial services companies in out-of-court restructurings, exchange offers and in-court proceedings, both domestically and internationally. Evan is described by Chambers Global as a practitioner "who serves clients extraordinarily well" and "praised by commentators for his ability to 'pull deals together when you really feel like all hope is lost'"; by Who's Who Legal as "an absolute star" who is "widely revered"; and in Global Turnaround as being "for the last fifteen years the 'go-to' guy for American distressed investors interested in Australia." Various other international surveys have described Evan as "one of the globe's leading practitioners," "articulate, focused, commercial, affable and highly respected," "feared and revered," and "singled out for his ‘superb knowledge, fine commercial sense, unending energy and sharp focus.’" A nationwide survey of industry participants and peers recently honored Evan as one of the ten "Most Admired Bankruptcy Attorneys in the United States."