(As is my favorite New Year’s tradition, we’re in DC, but will watch it on TV!)
It’s that obligatory time of the year for “Year in Review” posts and the like. We’re also closing Plan Proponent’s inaugural year. Therefore, from my makeshift office at my in-laws’ home in Potomac, Maryland, here’s our “Best of 2015” post. Happy New Year from Stone & Baxter!
We started Plan Proponent on February 12, 2015. Looking for an idiot-proof editorial schedule to get us started, and excited about the recently-announced ABI Commission Report, our plan was to blog every confirmation-related section of the Commission Report from its Exiting the Case piece by April 16, 2015, just in time for the kick-off of the American Bankruptcy Institute’s 33rd Annual Spring Meeting in Washington, D.C.–one of the first meetings to profile the Commission Report.
Despite our best efforts, it took us until August 18, 2015 (!) to wrap-up the confirmation-related aspects of the Report, but we had fun trying. Additionally, we had some important distractions along the way, including the May issuance of the U.S. Supreme Court case of Bullard v. Blue Hills Bank (regarding the finality of plan confirmation orders) and the June issuance of the U.S. Supreme Court case of Baker Botts, L.L.P. v. ASARCO, LLC (regarding whether Chapter 11 fee application defense costs are reimbursable). We hit the Baker Botts case hard, and even attracted a short Q&A interview with Jim Christie of Reuters about the impact of the Baker Botts case on Chapter 11 practice.
Overall, 25 out of 36 of our 2015 posts were about the ABI Commission Report. Even the ABI and the Chapter 11 Commission, who were very kind to us on Twitter, must’ve been tired of seeing more posts about the Commission Report. In any event, it was a great way to get us started and we found it very educational–it’s basically a mini-Collier, you know. Strangely though, of our Top 10 posts, the ABI Commission Report didn’t crack the Top 2.
Without further adieu, here are Plan Proponent’s Top 10 most popular posts of 2015. Enjoy!
Our Top 10 Posts of 2015
Right out of the gate, I’m going to cheat, and reserve our 10th spot for the post that was hands-down the most popular post over the last 30 days. Unlike our top 2 posts, for example, this post has only had days, not months, to incubate. More importantly, it also reflects one of the major aims of this blog: to remind practitioners that the language of the Bankruptcy Code matters. Indeed, it’s amazing what you can learn about bankruptcy by simply picking-up your Code book!
In this post (Tom McClendon’s much-appreciated second post), we remind readers that the “best interests of creditors test” under Section § 1129(a)(7) is designed to provide a projection of liquidation at the individual creditor level (rather than the class level) as of the plan effective date (rather than as of the petition date) for the benefit of impaired, non-consenting creditors (rather than unimpaired, consenting creditors).
This wasn’t exactly the most interesting topic, but it’s an important topic, especially for debtor lawyers who spend a good bit of their time dressing-up secured assets for sale, sometimes for a secured creditor’s exclusive benefit.
In a nutshell, the Commission concluded that the “current scope of section 506(c) was appropriate, and that the required nexus between the estate’s expenditures and the secured creditor’s collateral was an appropriate gating feature” of § 506(c). However, the Commission did recommend that § 506(c) should be amended to prohibit a trustee from waivers or stipulations of its § 506(c) rights, as such rights are for the benefit of the entire estate.
You can read more here.
In this 2 part post, we took a much needed break from covering the ABI Commission Report and focused on the dead-wrong U.S. Supreme Court case of Bullard v. Blue Hills Bank. In Bullard, the Supreme Court held that, unlike a confirmation or dismissal, an order denying confirmation of a Chapter 13 plan is not final because it doesn’t terminate the “entire process of attempting to arrive at an approved plan.”
Although the Court’s view of finality seems to turn on whether an order results in the sort of “significant consequences” that justify immediate appeal as of right, the Court adopts a rigid rule: Orders approving confirmation are final; orders denying confirmation are not final. We weren’t bashful about our disagreement with this decision–the first of two major (wrong) SCOTUS decisions in 2015.
As it turns out, the so called “absolute priority rule” (APR) got quite a few “hits” this year on Plan Proponent. In this post, we discussed the ABI Commission’s proposed treatment of “plan gifting provisions,” a popular means of encouraging “out of the money” creditors who use the APR to hold a plan hostage to consent to a plan.
Specifically, senior creditors will “gift” or a “tip” (out of their own distributions) the holdout class to achieve consensual confirmation. Although the Commission generally favors “lowering barriers to confirmation of feasible plans,” it’s not in favor of gifting provisions that violate the APR. Read more here.
For some reason, the word “inscrutable” is a frequently-used word in our office. It’s also a good way to describe the ABI Commission’s “Redemption Option Value” proposal. Admittedly, this one took quite some effort to get through. And it was probably at this point in our coverage of the Report that I most felt like our ABI posts were starting to read like junior high book reports! We were summarizing (just shortening?), but were we adding value? We even had to split it into 2 parts. Here’s your reward for finishing part 1: ABI Commission Report – More on “Redemption Option Value”.
All of that said, we were pleased when Konstantin Danilov and Chis Feige of Analysis Group, Inc. came across our ROV posts. Konstantin and Chris wrote their own ROV article for the Association of Insolvency & Restructuring Advisors Journal. It’s an excellent article and gives the ROV concept the technical treatment that it deserves. (And for all of you lawyers out there wondering whether having a “blawg” is worth it–Konstantin, who only learned about us through Plan Proponent, was nice enough to ask us whether we’d be interesting in writing an AIRA Journal article.
To recap, Section 552(b) addresses the effect of pre-petition liens on post-petition property. Section 552(a) states the general rule: post-petition property is not subject to a pre-petition lien. Section 552(b) states two exceptions: a pre-petition lien continues as to post-petition proceeds and post-petition rents from pre-petition collateral. In turn, the two exceptions are subject to an exception: the court, after notice and a hearing, can treat the pre-petition lien differently based on the “equities of the case.” This post ended-up being more interesting to readers than we expected.
(The most interesting part of the Commission’s analysis of Section 552(b)’s “equities of the case” exception is its focus on the recent Residential Capital decision–an enormous, 117 page opinion by Judge Glenn which reads like a treatise on cash collateral and valuation issues, among other issues. You might just want to skip our post and read Res Cap!)
In this post, we discussed the extent to which third-party releases in Chapter 11 plans are enforceable. Arguably, the most useful tidbit that we provided was the summary of the case split on third-party releases (compliments of the 11th Circuit in SE Property Holdings, LLC v. Seaside Engineering & Surveying, Inc., our favorite 2015 11th Circuit case):
- “Pro-Release” Circuits (Majority View): 2nd, 3rd, 4th, 6th, 7th, 11th (and likely the 1st and D.C.) Circuits
- “Anti-Release” Circuits (Minority View): 5th, 9th, and 10th Circuits
This post provided us an excuse, via the ABI Commission Report, to give an overview of our favorite business bankruptcy topic: cramdown interest rates under Till v. SCS Credit Corp, 541 U.S. 465 (2004). It also provided an excuse for us to link over to Version 14 (!) of Weil Gotshal’s Cramdown Interest Rate Table (the most useful bankruptcy case chart we’ve ever seen and the inspiration for our “absolute priority rule” case chart, which is up next).
In this post, we asked whether Partridge Family member David Cassidy’s Chapter 11 bankruptcy case in the Southern District of Florida might help resolve the most controversial plan confirmation issue in individual Chapter 11 cases: the “absolute priority rule” (APR). The APR is our favorite individual debtor topic because it arguably gets at the right of an individual to reorganize under Chapter 11. However, we limited our post to (1) introducing the APR, (2) framing the split of authority regarding its application, and (3) linking readers to our APR Case Chart.
[Note to Tom: If you’re looking for a 2016 post idea, then let’s update this one!]
And the winner is…
Our 3 posts on the Baker Botts case were in the Top 8 of all of our posts for 2015 and the Delaware post was, by far, the most popular post of 2015. It might’ve been the pretty picture of the Baha Mar resort or it might just be the riveting topic of fee defense costs. Who knows. In any event, we really enjoyed drilling down on this important case.
In short, on June 15, a 6-3 Supreme Court held that bankruptcy professionals employed under Section 327(a) of the Bankruptcy Code may not, under Section 330(a)(1) of the Bankruptcy Code, recover as compensation fees incurred in defending their bankruptcy fee applications. In turn, the United States Trustee in Delaware has filed a slew of ASARCO-themed objections in some large Delaware cases (i.e., does Section 328(a) provide an ASARCO workaround by permitting debtors to agree, up-front, in the engagement letter to pay fee defense costs?). The Delaware courts do not appear to have ruled yet, but we’ll keep you posted in 2016 when those decisions come down.
Here’s a link to the combined post (a convenient .pdf of our Baker Botts Q&A) that kicked-off our Baker Botts coverage: Click Here. The individual links:
Finally, we capped-off our Baker Botts coverage in 2015 with a quick Q&A with Reuters. Kinda cool.
And that’s it for 2015. Thanks for following! We hope you enjoyed our posts. We’ve got some “exciting” things planned for 2016–things that we simply didn’t have the bandwidth to implement this year. Until then, Happy New Year!