[Today’s post is from Braden Copeland, a Mercer 3L. He joined us as a Summer Associate in 2021. We’re delighted that he’ll come on as an Associate after he graduates this Spring. I asked him to look for a confirmation-related Subchapter V opinion and write something up for the blog. I’m thrilled to have the help. P.S. A too-early-in-the-year plan confirmation trial delayed our New Year’s post, but it’s still coming! – Dave]

I’m not prejudging it but I think the Trustee’s objection is an uphill battle simply because it sounds almost like he is arguing the 1111(b) election itself is not fair and equitable, which of course there is a reason it exists. But perhaps it is the application of the election and the facts and circumstances of this case that is not fair and equitable and whether or not we can go down that path.

— Judge Thomas Saladino, United States Bankruptcy Court for the District of Nebraska, as heard in a status teleconference on September 22, 2021.

Well, the court went down that path.

But, first, let me back up…


Continue Reading Confirmation DENIED: Subchapter V Trustee Challenges 1111(b) Election

Late yesterday, Judge Colleen McMahon (SDNY), in a 142-page (!) opinion, reversed the plan confirmation order in the Purdue Pharma Chapter 11 appeal on the basis that its non-consensual third-party releases are improper under the Bankruptcy Code.

As quick background, Purdue Pharma manufactures OxyContin. It sought Chapter 11 bankruptcy protection in September 2019 in response

A couple of weeks ago, we kicked off a Bankruptcy Judges series, with the first part of the series being devoted to Georgia’s Ret. Judge W. Homer Drake, Jr. While the feedback  has been very positive, I attribute at least 90% of it to readers’ affection for Judge Drake that he earned over 53 years on the bench and 10% or less to my efforts to curate those years into an interesting opening profile. We now turn to the more serious business of covering (some of) Judge Drake’s 555 bankruptcy opinions.

As we encountered in our unlikely bankruptcy profiles of Justice Scalia, Justice Ginsburg, and Justice Gorsuch, transitioning from the profile to the decisions must be, if you’re doing it right, a little underwhelming. Nevertheless, over the next couple of weeks we’ll slice and dice our “JU(Drake)” Westlaw search to find the most educational and interesting parts. In this post, we’ll cover Judge Drake’s most cited confirmation-related Chapter 11 opinions in a Top 10 format.


Continue Reading Judges Series – Judge Homer Drake’s Top 10 Confirmation Opinions – Part 1 (#10 to #6)

We’ve had a slow start in 2018 and figured that we’d get back to basics with First National Bank of Oneida v. Brandt, an Eleventh Circuit Court of Appeals Chapter 11 confirmation decision from last month. Ultimately, the Court remanded to the district court on one issue: what’s the impact on a confirmed individual

Once again from my in-laws’ home in Potomac, Maryland, here’s Plan Proponent’s Best of 2017 post, a link by link Top 10 of our third year of blogging–although my wife just asked, in rather savage fashion, “Did you even have 10 posts this year?” Wow. (We had 11 posts, so one unlucky post about

For our scintillating “Back to School” post, we’ll discuss 11 U.S.C. § 1129(d), which deals with those rare Chapter 11 plans whose “principal purpose” is the “avoidance of taxes.” For most, including judges, § 1129(d) is an afterthought. Until recently, it only crept into my practice by accident: I’ve got a 10 a.m. confirmation

The Association of Insolvency & Restructuring Advisors published its 1st Quarter 2017 Journal last Friday. Richard Gaudet, of HDH Advisors, LLC, and I wrote the article titled “Till Realized: Calculating Objective Chapter 11 Cramdown Rates without Expert Testimony.” The focus of the article is on the application of the U.S. Supreme Court