Last night I wrapped-up a two-part lecture on bankruptcy plan confirmation for Gary Marsh’s Complex Restructuring course at Emory Law. Without this blog, I likely wouldn’t have had that neat opportunity over the last few years, and I certainly wouldn’t have had so much Judge Drake content to fill up six hours of class time. And so it’s only fitting that I wish Plan Proponent a Happy Birthday! With our very first post on February 12, 2015, the blog turned 10 yesterday morning. To give that milestone some context, as of February 12, 2015:

• My wife Jessica and I were still in our 30s;
• Maddy (who starts at UGA this Fall!) and Kate were just 8 and 5;
• Obama was still President;
• Tom Brady had just won his fourth of seven Super Bowls;
• Fifty Shades of Grey would be released a day later (whether we liked it or not)
• House of Cards was still a big deal on Netflix;
• Uptown Funk was #1 on the Billboard Top 100;
• A $1,000 investment in Nvidia would now be worth close to $250,000!; and
• The Gulf of Mexico was still the Gulf of Mexico (Jessica’s joke)

I got the idea back in 2014. As a young associate, I was trying to network and “sharpen the saw” with writing. I was an avid reader of Weil’s Restructuring Blog and I also discovered those slick law blogs from LexBlog, including Scott Riddle’s Georgia Bankruptcy Blog and David Smyth’s (now shuttered) Cady Bar the Door, an SEC-related law blog. And then there was Steve Jakubowski’s Bankruptcy Litigation Blog. Steve, the OG bankruptcy blogger and whose blog turns 20 (!) this year, has been a big Plan Proponent supporter from the beginning. He switched over to LexBlog a few years ago with Bankruptcy Litigation Blog 2.0.

While we also transitioned over to LexBlog a few years ago, there is no way that Stone & Baxter was going to shell out thousands of dollars to LexBlog for my new and unproven blog hobby, although I must clarify that it’s considerably cheaper now. Thus, I spent some painful months in 2014 getting up at 4 a.m. every morning and stumbling through all of the technical aspects of setting up a blog (it was really hard back then) and trying to reverse engineer LexBlog’s slickness—forget about actually blogging.

“Would you just post something already? No one cares about which font kit you use or whether your social media ‘widgets’ are centered,” pleaded my loving and supportive wife. She was right, of course. (She also knew that I was prone to never getting started, an inclination that Steven Pressfield described so profoundly in his excellent book, The War of Art.)

(An early and rather drab prototype of Plan Proponent from 2014—I’m embarrassed to admit how difficult it was to come up with that, especially the social media icons, but, man, I sure miss those Adobe fonts that had to go bye-bye with the new mobile-responsive design.)

So following LexBlog founder Kevin O’Keefe’s extensive and super-helpful advice to lawyers about blogging and social media, I settled on the simplest of blog designs; chose Chapter 11 plan confirmation issues as my niche; looked to the ABI Commission’s  recent 402 page Final Report and Recommendations for an almost endless source of initial posts about confirmation issues; and started posting. The Report kept me going for months. I may have beat it to death but the posting consistency has never been better.

Ten years, 135 posts, and 153 e-mail subscribers later, Plan Proponent is still going, even if it has slowed down over the last year or so. Indeed, an Emory student asked me last week “Is Plan Proponent ever going to make another post?” Ouch (but fair)!

Blogging is a young person’s game and is so hard to maintain without help. And so in that regard, I’m thrilled to announce that we just hired Tate Crymes, a recent Term Clerk for Judge Austin Carter. She comes to us by way of Georgia Tech and Mercer Law; she was on Law Review and is an excellent writer; and she’s excited to dive-in and help just as soon as she and her former clerk colleagues finish their Annual Bankruptcy Survey article for the Mercer Law Review. Who knows, maybe she can get us back to the bi-weekly Bankruptcy Quizzes.

In the meantime, and with minimal (but in some cases unavoidable) overlap with 2024’s My Top 10 Favorite Posts, here is a year-by-year list of my favorites:

2015

2016

2017

2018

2019

2020

2021

2022

2023

2024

A huge thank you to our readers! Here’s to 10 more years! If you’d like to stay on top of important bankruptcy issues, then you can subscribe to Plan Proponent via email here.

Behind as usual this year, I’ll try to get back on track with bi-weekly Bankruptcy Quizzes.

This week’s short quiz is all about cash collateral. Click the photo below and enjoy!

Click here for prior quizzes.

If you enjoyed this post and would like to be the first to hear about new Bankruptcy Quizzes and other Chapter 11 updates, then you can subscribe to Plan Proponent via email her

(From Dave’s SCOTUS Stash)

Two weeks ago, I promised to get back to Bankruptcy Quizzes, but on an every other week basis. Unfortunately for my Spring Break, I had an emergency Chapter 11 filing today that had me up at 3:30 a.m. Thus, lacking time but wanting to make good on my promise, here’s this week’s quiz: a re-publish of the SCOTUS bankruptcy quiz from June 9, 2023, a quiz that somehow got the least amount of looks out of all of the prior bankruptcy quizzes.

At least with a re-publish, I have stats: The high score was 9 out 10; the average was 5.83; and the lowest was 3. Click the image below and see how you compare. Have a nice weekend!

Click here for prior quizzes.

If you enjoyed this post and would like to be the first to hear about new Bankruptcy Quizzes and other Chapter 11 updates, then you can subscribe to Plan Proponent via email here.

As you know from prior posts, if I do anything well, then it’s public self-deprecation. And, thus, I’m embarrassed to admit that I wrongly attributed the In re Carter (Bankr. N.D. Ga. Dec. 13, 2023) Sub V opinion to Judge Sage Sigler (Bankr. N.D. Ga.) instead of Judge Jeffery Cavender (Bankr. N.D. Ga.). How did I learn that? Imagine the worst way, and that’s it! I wish I could blame it on some AI “hallucination,” as they call it, but it’s 100% on me.

My apologies to anyone who may have unwittingly shared the errant attribution.

Here’s the updated version:

If you’d like to be the first to hear about other embarrassing stories like this one, then you can subscribe to Plan Proponent via email here.

I’m attending the annual Southeastern Bankruptcy Law Institute (SBLI) seminar in Atlanta this week. So many folks (read: maybe two people) asked me why I stopped doing the weekly bankruptcy quizzes. Worse, Prof. Ishaq Kundawala (the Southeastern Bankruptcy Law Institute and W. Homer Drake Jr. Endowed Chair in Bankruptcy Law at Mercer Law) couldn’t make it to SBLI this year but also reached out yesterday to shame me for not having posted a quiz in over six months. Thus, by “popular” demand, they’re back, but in a bi-weekly format.

And in honor of SBLI turning 50 this year after Judge Drake founded it in 1974, this week’s quiz will test how closely SBLI attendees were listening in the Thursday sessions. But don’t worry, you needn’t be an attendee this year to earn a 5 out 5 perfect score.

Click the image below to take the quiz. Have a nice weekend!

Click here for prior quizzes.

If you enjoyed this post and would like to be the first to hear about new Bankruptcy Quizzes and other Chapter 11 updates, then you can subscribe to Plan Proponent via email here.

Continuing with the monthly series, here are short summaries of December 2023’s Subchapter V bankruptcy opinions from across the country. As in the prior Sub V case posts, I’ll provide a roadmap of the issues and then you can click the opinions if you want to dig deeper.

However, there’s a “fun” catch this month. Recently, Stone & Baxter upgraded from Lexis+ to Lexis+ AI. Given that I’m inundated almost daily with emails about artificial intelligence and law practice, I couldn’t help but feel behind the times. Thus, I’m excited to have something to experiment with. And that’s exactly what I’m going to do with this post.

Specifically, I located on Lexis all of the Subchapter V opinions from December; I had my assistant find the docketed versions of those opinions using the Lexis-sourced citations; except for Filitech (as noted below), I uploaded .pdfs of those opinions to Lexis using its AI “summarize” feature; and now I’m going to ask the AI to summarize each case. But because this is an experiment first and foremost, I’m literally going to use the AI case summary, without any editing from me (other than formatting).

[I added the extra step of locating the opinion .pdfs from Pacer, instead of giving Lexis its own citation, so as to test how the AI does summarizing any old .pdf. It has a citation-driven “summarize case” feature, too, but I think I like the “summarize document” feature better.]

Disclaimer: Because I know you’d never take my word for it on a case summary, I also know you won’t take the AI’s word for it. Indeed, all I’m showing in this experimental post is an example of what legal-oriented, relatively cost-effective AI is capable of producing in just a few minutes for 83 pages of dense cases, without any editorial or supervisory varnish.

Here goes:

1. In re McBride (Bankr. D. Maine Dec. 5, 2023)

I asked Lexis AI to provide a 150 word summary in a formal style:

In In re McBride, the bankruptcy court denied confirmation of the debtor’s proposed Chapter 11 plan. The court found that the debtor, who was an individual dentist, failed to provide sufficient personal income information as required by 11 U.S.C. § 1191(c)(2)(B) to allow the court and creditors to determine her disposable income.

Specifically, the income projections submitted were inaccurate and confusing, and the attached exhibits reflected the income and expenses of the debtor’s dental practice rather than her personal income. As this was an individual rather than corporate bankruptcy case, the debtor’s personal income was the relevant metric. Additionally, the court held that the proposed plan did not provide appropriate remedies in accordance with 11 U.S.C. § 1191(c)(3).

Therefore, as the debtor did not satisfy the disposable income and appropriate remedies requirements for plan confirmation under Chapter 11, the court denied confirmation of the plan.

Dave’s Feedback: If you read the case, you’ll appreciate how the AI (give only a word count) provides exactly what I’m looking for: a “roadmap of the issues.” Given a larger word count, it might’ve revealed just how far down in the weeds Judge Cary got on: (i) the disposable income requirement and related budgeting and presentation issues and (ii) the “appropriate remedies” requirement (which I now think deserves more attention than I’ve been giving it).

In short: this opinion is essential reading if you’re starved for guidance on those issues.

2. In re Carter (Bankr. N.D. Ga. Dec. 13, 2023)

I asked Lexis AI to provide a 150 word summary in a casual style but then told it to summarize it using bullets and to make it less irreverent (after it initially called the debtor “this dude” (!) and described the outcome as a “bummer”—sorry Judge Sigler Judge Cavender). 03/18/24 UPDATE: I learned the hard way, and in the worst way, this afternoon that I wrongly attributed this opinion to Judge Sigler.

• The court addressed whether debtor John Fitzgerald Carter was eligible for Subchapter V bankruptcy
• Carter owned two companies in Chapter 7 bankruptcy – D&N Electric and Carter Brothers Security Services
• Together, Carter and the companies exceeded $7.5 million in debt, making Carter ineligible for Subchapter V
• Carter argued the companies weren’t “affiliates” because trustees controlled them
• The court rejected this, finding trustees don’t change the definition of “affiliate”
• The court also found Carter didn’t prove combined debt was under $7.5 million
• Therefore, the court ruled in favor of the U.S. Trustee’s objection
• Carter is ineligible for Subchapter V and must proceed through standard Chapter 11

Dave’s Feedback: Again, if you want to get down into the weeds—this time on Judge Sigler’s Cavender’s (see above correction) thorough, precise, but also sympathetic analysis—then read the case. And when you do, you’ll continue to appreciate how well the AI can condense a lengthy opinion.

3. In re Feilitech US, LLC (Bankr. N.D. Miss. Dec. 21, 2023)

I asked Lexis AI to provide a 150 word summary of an MS Word version of the Lexis opinion (without headnotes) because the Pacer version, at 52 pages, was too large for the “summarize” feature.

In re Feilitech US LLC involved interim fee applications filed by Jones Walker LLP and Cozen O’Connor as bankruptcy counsel for the debtor Feilitech. The US Trustee objected to the hourly rates requested. The court found it had preapproved the firms’ hourly rates under § 328 when approving their employment. Thus, the rates could only be reduced if improvident due to unanticipated circumstances. The court found no justification to lower the rates under 328. It also found the hours billed were reasonable and necessary under § 330. The court awarded the fees requested after first applying remaining balances of prepetition retainers.

Dave’s Feedback: I could have justified not including this opinion as a Sub V opinion because it’s really just a § 328 and § 330 opinion. But, the larger issue, that I wish the AI would have picked-up on, is the issue of whether a Sub V case can accommodate large, out of town firms billing at large firm rates. And I also wanted to highlight the incredible efforts of Judge Maddox, one of my favorite judges, in giving the issue 52 pages of attention. Could you summarize a 52-page legal opinion in 150 words in less than 30 seconds?

Conclusion

If my partners are reading, then our decision to upgrade to Lexis+ AI was a brilliant decision and we’ll never regret the extra $XXX.XX per month we’re paying. [Admit it, you’re curious what it costs!] If they aren’t reading, then it’s going to take some additional tinkering before I’m ready to fully recommend the AI add-on. While I’m uncomfortable turning these sort-of-monthly case summary posts over to the AI, the AI did a good, if not an excellent job and, other than a few extra seconds that’s baked into any Lexis/Westlaw transaction, it’s really fast and, as this small sample size experiment shows, pretty discerning and competent.

If you’d like to receive future monthly case summaries and stay on top of other important bankruptcy issues, then you can subscribe to Plan Proponent via email here.

(My Favorite Homemade Blog Photo: Justice Gorsuch’s Trans Am from In re Haberman with Judge Garland Looking On)

February 12, 2024 will mark Plan Proponent’s 9th Anniversary. Back in the early days, I’d be holed-up in Jessica’s parents’ basement in Potomac on New Year’s Eve preparing a Year in Review Top 10 List. Of course, that was back when I posted more than ten posts per year. While the post total is now 132 posts, my productivity has dropped off over the years and, thus, I’m embarrassed to admit that I haven’t done a year-end Top 10 list since January 2020.

Quality over quantity, right? Anyway, to force myself to do something even “bigger” for the 10th Anniversary and to save the Justice Sandra Day O’Connor tribute post for later in January, here are my Top 10 favorite (i.e., most readable, least boring) Plan Proponent blog posts.

Thanks for nine years of support and Happy New Year!

10. ABI Commission Report – Small and Medium-Sized Debtor Enterprises

Remember the 402-page ABI Commission Report from 2014? Well, that Report is what started it all for Plan Proponent with its first ever post on February 12, 2015. Ridiculously, I blogged about every single confirmation-related page of that Report, from February 12, 2015 to August 15, 2015, a total of 23 separate posts!

In hindsight, I like the Small and Medium-Sized Debtor Enterprises (SME) post the best because not only was it the last post in an exhausting, “put it out of its misery!” series, but it also provided a primitive preview of what later became Subchapter V almost 5 years later with the SBRA. Sixty days to file a plan? Yikes!

9. David Cassidy and the Absolute Priority Rule

Speaking of the SBRA, the absolute priority rule (APR) posts haven’t aged well and have lost much of their relevance now that so many individual Chapter 11 cases are Sub V cases where (thank God) the APR no longer applies.

But back in 2014, when I was a wee associate, I literally read every single APR opinion ever written for individual debtors to help my longtime mentor Ward Stone prepare for an APR panel for ABI Southeast 2014. That resulted in our APR Case Chart (lasted updated 02/13/17).

And for Plan Proponent’s second ever post, the late David Cassidy (of Partridge Family fame) provided an excuse to leverage the Chart when he filed his Florida Chapter 11 case on February 11, 2015. I revisited it on the blog’s 2nd anniversary in early 2017 when his plan confirmation litigation started. Unfortunately, Cassidy died later that year.

8. Baker Botts SCOTUS Series

I like to joke that, for a year or so, I was the leading expert on the U.S. Supreme Court’s 2015 Baker Botts, L.L.P. v. ASARCO, LLC “fees for fees” bankruptcy opinion wherein the Court held that professionals employed under § 327(a) may not, under § 330(a), recover as compensation fees incurred in defending their fee applications. What that really means is that, for a year or so, I had an unhealthy obsession with Baker Botts, a case that took § 327 professionals by storm but is now rarely mentioned.

But while my instinct is to make fun of myself, the Baker Botts experiment, no matter how irrelevant Baker Botts is today, did provide some minor publishing opportunities and a few run-ins with legal journalists who were seeking soundbites about such an esoteric decision.

7. Book Excerpt: A Southern Lawyer’s Lunch with Harvey Miller

Growing tired of bi-weekly case summaries, I was honored in 2017 when my friend and Atlanta bankruptcy lawyer Doug Ford let me post an excerpt from his self-published book  I Do My Own Stunts: Finding My Way as an Attorney. And while the Harvey Miller “clickbait” was irresistible, I really like Doug’s story about meeting Harvey in NYC.

6. Justice Thomas Crashes a Bankruptcy Breakout Session

Chief Judge Austin Carter (Bankr. M.D. Ga.)—who supplemented my bankruptcy training from Ward by teaching me everything I know about day-to-day Chapter 11 practice when he was my Stone & Baxter colleague—was nice enough to invite Jessica and me to the 2016 Eleventh Circuit Judicial Conference in Point Clear Alabama.

Typed-up from my hotel room on the last day of the Conference, this post not only covers all of the inevitable pomp and circumstance of collecting an entire circuit of federal judges in a single hotel, but also portrays a charming and jolly Justice Thomas. As federal judges are prone to enjoy, the Conference invited an Abe Lincoln impersonator to provide entertainment during lunch. He was in character for the entire lunch and Justice Thomas loved it. The post also tells of our personal encounter with none other than one of President Obama’s potential SCOTUS nominees—perhaps the most humble and unassuming judge at the conference.

It’s a fun, almost bankruptcy-free read.

5. Forcing Bankruptcy Relevance on SCOTUS Nominees

The U.S. Supreme Court has such a disdain for bankruptcy that bankruptcy is one of the few areas that the Justices almost always agree about. Thus, when President Obama threw up one last nominee in Judge Garland and President Trump was nominating potential Justices on a seemingly weekly basis (including now Justices Gorsuch and Kavanaugh), I really enjoyed forcing a bankruptcy angle on these nominees, tongue-in-cheek or otherwise.

• Click here for the Judge Garland post
• Click here for part 1 and here for part 2 of the Justice Gorsuch post
• Click here for the Justice Kavanaugh post

The photoshopped picture above, which I used on Twitter X but was too bashful (until now) to use on the blog, is Burt Reynolds (disguised as Justice Gorsuch), with a wishful Judge Garland looking on, wondering what could have been. And the Trans Am is from In re Haberman, with (now) Justice Gorsuch introducing a bankruptcy opinion like no one else can:

At one level, this is a dispute over loan payments secured by a nearly 30 year old Pontiac Trans Am. At another level, this case tests the limits of a bankruptcy trustee’s statutory power to displace existing lienholders.

4. Baseball Bankruptcies in October Series

But for the depth of work and/or sentimentality that characterize my top three favorites, the Baseball Series will always be my favorite. I love October Baseball and it just so happens that it has featured recently-bankrupt teams (the Chicago Cubs and the L.A. Dodgers) and a “bankruptcy-adjacent” team (the Houston Astros).

And while baseball games are now supposed to be shorter in duration, the pre-2023 World Series games provided plenty of time for in-game blogging:

• Click here for the Chicago Cubs post that started the series
• Click here for the L.A. Dodgers post
• Click here for the Houston Astros post

3. Justice Antonin Scalia’s Bankruptcy Opinions

3. Justice Ruth Bader Ginsburg’s Bankruptcy Opinions

I can’t choose between these two tributes and, because Justice Scalia and Justice Ginsburg were such unlikely friends from opposite ends of the spectrum, I won’t. I got lucky that such historically-important and larger than life justices also had such a significant bankruptcy footprint. In many ways, these bookend posts define the blog for me.

2. History of Law Firm and Professional Websites

The three-part New Years 2023 series on the history of professional websites (going back to the 90s) was an insane labor of love that took more than two years of off an on work to complete. At one point, I think I was hitting the Wayback Machine site so frequently that I literally shut it down.

But that site revealed an Easter Egg of all Easter Eggs when I uncovered the long lost King & Spalding “2001 Blooper Reel” video that was buried in the archive of its old website.

Anyway, these posts are loaded with nostalgia.

• Click here for Part 1
• Click here for Part 2
• Click here for Part 3

1. Judge W. Homer Drake, Jr. Series

At least in Georgia, we’ve all been riding Judge Drake’s coattails for decades. And it goes beyond Georgia because so many people reached out to me after I posted this series—not about the series or even the cases summarized in the series, but Judge Drake himself, the judge who the American College of Bankruptcy describes as the longest serving bankruptcy judge in history and one of the longest serving federal judges ever.

Sadly, Judge Drake died about a year later. It’s only fitting, then, that I road Judge Drake’s coattails one last time last March when the Southeastern Bankruptcy Law Institute asked me if I’d participate in the SBLI’s luncheon honoring Judge Drake. As many of you know, Judge Drake founded SBLI in Atlanta in 1974. In fact, it will celebrate its 50th year this year.

SBLI thought that Judge Paul Bonapfel was giving the keynote tribute to Judge Drake, with me giving only a short introduction. Thus, I’m sure its planners were understandably surprised and nervous when Judge Bonapfel switched the order a week prior and asked me to do it. On the one hand, I’m easily the least distinguished person to ever tribute Judge Drake in public. On the other hand, that neat opportunity would have been unavailable without this blog and Judge Bonapfel’s generosity.

Bonus: A Tribute to Jerome L. “Jerry” Kaplan

This might not be your favorite, but I’d be remiss not to mention the post that is dearest to my firm and me. And that is my tribute to Jerry Kaplan, who happened to be friends with Judge Drake going way back. Naturally, this tribute turned into a history of Stone & Baxter and its predecessors going back 60 plus years. They just don’t make lawyers like Jerry anymore.

And so there you have it, my favorite posts. If you’d like to know about other times when I occasionally post something other than boring case summaries, then you can subscribe to Plan Proponent via email here.

With no introduction or fanfare, here, in a single post, are short summaries of October 2023’s and November 2023’s notable Subchapter V opinions from across the country.

As in the prior Sub V case posts, I’ll provide a roadmap of the issues and then you can click the opinions if you want to dig deeper.

Happy New Year!

October 2023 Subchapter V Opinions

1. In re Franco’s Paving, LLC (Bankr. S.D. Tex. Oct. 5, 2023)

In Franco’s, Judge Jones held that when no votes are cast in a particular plan class, that class doesn’t count for § 1129(a)(8) purposes, such that the plan can still be a consensual plan under § 1191(a). While Franco’s reaches the same result as the result in the Tenth Circuit’s Ruti-Sweetwater opinion, it reached it by ignoring the class instead of deeming the lack of votes as a consent to the plan. In doing so, the court appears to have fun explaining the mathematical absurdity (i.e., zero divided by zero) of applying § 1126 to a no-vote situation.

2. Reznick v. United States Trustee (In re DA & AR Hospice Care, Inc.) (9th Cir. B.A.P. Oct. 20, 2023)

I considered not covering this case but attorney misconduct cases are too interesting and scary to ignore. In Reznick, the BAP upheld the bankruptcy court’s determination that debtor’s (purported) counsel, Mr. Reznick, knowingly filed a fraudulent Sub V case and should be referred to a disciplinary panel.

In the face of an ownership/control dispute that got at the heart of authority for the filing, and despite characterizing the information he received to confirm authority as “bullsh*t” and “not pass[ing] the smell test,” he filed the case anyway. He even expressed fear that he might lose his law license, but still filed it. He’s now suspended for three years.

The lesson: Your “good faith” basis for believing that your client representative has authority to file a Chapter 11 petition better at least satisfy Rule 9011.

3. In re Boteilho Haw. Enters. (Bankr. D. Haw. Oct. 24, 2023)

If you ask my junior colleagues, they’ll likely tell you that they’re sick and tired of sitting in new client meetings and hearing me tell potential Sub V debtor clients over and over that the minimum they’ll have to pay unsecured creditors in a Sub V case is the greater of (i) the net liquidation value of the estate in a hypothetical Chapter 7 liquidation and (ii) their projected disposable income over 3 to 5 years. Indeed, it’s a difficult concept to explain and is easily misunderstood. And while the liquidation analysis tends to be a perfunctory and not very determinative part of the plan confirmation process, it was central in Boteilho.

Thus, if you want to read a Collier-worthy explanation of the requirements, limitations, and practical considerations that guide the “best interests of creditors test” and learn how courts evaluate the factual assumptions for that “inherently speculative” test, then click the link.

4. In re CYMA Cleaning Contrs., Inc. (Bankr. D. P.R. Oct. 27, 2023)

Under Rule 1020, the deadline to object to a Sub V designation is 30 days after the conclusion of the 341 meeting. While that deadline had expired in CYMA without an objection, the court held that it could sua sponte revoke CYMA’s designation, and did so on the basis that the debtor, as a SARE debtor, didn’t qualify for Subchapter V.

The court based its decision on § 1112 (which permits a debtor to convert a Chapter 11 case to a Chapter 7 case) and its equitable power under § 105(a). In other words, if a debtor can elect to amend its petition to become a Sub V debtor or a Sub V debtor can elect to proceed as a regular Chapter 11 debtor after making its initial Sub V election, then, the rational goes, the court can sua sponte revoke a Sub V designation.

Arguably though, isn’t Rule 9006(b)(1) the simpler rationale, particularly given, as noted by the court, that the Advisory Committee Notes provide that Rule 9006(b)(1) is applicable to Rule 1020?

5. In re Kalos Capital (Bankr. N.D. Ga. Oct. 31, 2023)

We’ve been covering third-party release cases for over seven years, so I’m a little embarrassed that I’m just now getting around to Judge Sigler’s Kalos opinion, a Georgia opinion no less, and, worse, that I’m not giving it its own post. It’s certainly worthy of one. Blame it on Bill Rochelle who beat me to it and whose analysis is always too good to warrant a “me too” post.

In short, Judge Sigler evaluated the propriety of third-party releases that were proposed in exchange for those parties making a $1.3 million contribution to the Sub V broker-dealer’s plan. And in line with the Second Circuit’s Purdue opinion and applying the Eleventh Circuit’s Seaside factors (click here for our Seaside coverage), Judge Sigler approved the third-party releases. If you need more detail, click the opinion link or read Bill’s write-up.

November 2023 Subchapter V Opinions

1. In re Hot’z Power Wash, Inc. (Bankr. S.D. Tex. Nov. 7, 2023)

Similar to the Texas court in Franco’s (above), the Texas court in Hot’z determined that when a class does not cast any votes for or against a Sub V plan, that class doesn’t count for § 1129(a)(8) purposes. In short, the court adopted the reasoning in Franco’s and determined that the subject plan could be a consensual plan under § 1191(a), despite one class not voting at all.

To be sure, the court agreed that Rule 3018 doesn’t permit a debtor to place a notice on the face of its plan that reads, in essence, “a failure to vote shall be deemed an acceptance.” Rather, a failure to vote is not a deemed acceptance or a deemed rejection.

As debtor’s counsel, I must say I like this “trend” in the case law!

2. In re Holiday Ham Holdings, LLC (Bankr. W.D. Tenn. Nov. 17, 2023)

While Holiday contains nothing that is unique or specific to Subchapter V, I’m including it as an example of two Sub V cases wherein substantive consolidation was proposed, analyzed, and ultimately permitted. Otherwise, it’s a rather routine application of the Owens Corning factors for determining when sub con is appropriate.

3. In re Independence Fuel Sys., LLC (Bankr. E.D. Tex. Nov. 20, 2023)

This is another opinion involving a Sub V debtor but lacking any law that is specific or unique to Subchapter V. I’m including it because it involves confirmation issues, this blog’s chief focus. In short, the court confirmed a Sub V plan that included an integrated claim settlement. The non-debtor filed a post-confirmation lawsuit in state court. The debtor removed it to federal court and ultimately back to the bankruptcy court. The bankruptcy court denied the non-debtor’s remand request, concluding that the matter was an integral plan dispute.

Click the link for a closer look at the court’s post-confirmation jurisdiction analysis.

4. In re Hal Luftig Co. (Bankr. S.D.N.Y. Nov. 22, 2023)

Hal Luftig is, like Kalos (above), another Sub V third-party release case. It’s about 47 Lexis pages long and includes an extensive application of “Purdue III” (i.e., the recent Purdue Pharma decision we covered here, which Judge Sigler considered in Kalos, and which is under consideration by the U.S. Supreme Court).

After analyzing the seven Purdue factors, the court concluded that, subject to the release’s overbreadth being cured with a plan modification and final approval by the district court of the bankruptcy court’s proposed findings/conclusions, the release was confirmable.

5. In re Artesian Future Tech., LLC (9th Cir. B.A.P. Nov. 28, 2023)

This is yet another opinion involving a Sub V debtor but lacking any law that is specific or unique to Subchapter V. Like with Independence (above), I’m including it because it involves confirmation issues.

In short, the bankruptcy court confirmed a Sub V liquidating plan; the objecting creditor appealed (after its motions for reconsideration failed); and the debtor moved to dismiss the appeal on the basis that it was equitably moot. And after applying the Ninth Circuit’s equitable mootness elements, the BAP dismissed the appeal.

Specifically:

• The appellant failed to seek a stay pending appeal, which permitted the plan to be substantially consummated so that a merits determination would jeopardize others.
• The uninterrupted substantial consummation of the plan suggested equitable mootness.
• Given what had been permitted to occur after confirmation, the BAP couldn’t conceive of effective and equitable appellate relief if the appellant were to prevail.

6. In re Zhang Med. P.C. (Bankr. S.D.N.Y. Nov. 30, 2023)

Zhang is another Sub V eligibility opinion which considers, like the E.D. of Virginia did in Macedon Consulting (covered here back in July), whether a debtor’s future obligations under its executory contracts should be counted toward Subchapter V’s debt limitation.

You might recall that the Macedon court determined that the lease liabilities in that case were noncontingent because all events necessary to give rise to those liabilities occurred pre-petition and they didn’t depend on “some future extrinsic event.”

Ultimately, the Zhang court declined to follow Macedon for reasons that are unclear to me or do not appear to be relevant to the Zhang court’s ultimate decision. Specifically, the court ruled that because the debtor didn’t move to reject the subject lease until after the petition date, its future lease liability was, as of the petition date, “contingent and unliquidated as of that date.”

That seems to be to be consistent with Macedon‘s emphasis on “future extrinsic” events. Is the Zhang court saying (in dicta?) that the pre-petition events that made certain of the liabilities in Macedon noncontingent and unliquidated never count? I guess I’ll have to read both cases again.

[To be sure, the court determined that the debtor was ineligible to proceed under Subchapter V, but not because of the lease issue. Rather, as the court analyzed in the first half of the opinion, the debtor’s noncontingent and liquidated debts, alone, substantially exceeded the $7.5 million limit on the petition date.]

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On Monday, the U.S. Supreme Court heard oral argument in the Purdue Pharma bankruptcy appeal and, as a result, we might be approaching a mid-2024 “finish line” for an issue that some bankruptcy practitioners, professors, and judges are on the edge of their seats about: Do bankruptcy courts have authority under the Bankruptcy Code to approve non-consensual third-party releases, such as the release that the Sacklers are proposing to pay $6 billion for?

Of course, it’s not just a bankruptcy issue. Indeed, there is an inconceivable number of claims pending against Purdue Pharma (who is in bankruptcy) and the Sackler family (whose members are not in bankruptcy) from the opioid epidemic. Depending on one’s view or standing in the case, the proposed release is essential to a meaningful recovery or it’s unconscionable and legally improper.

This SCOTUSblog.com article correction illustrates that the outstanding claims are approaching, if not in excess of, the total amount of available worldwide currency!

Correction (Dec. 5 at 7:43 a.m.): An earlier version of this article incorrectly reported that there are $40 billion in lawsuits against Purdue and the Sacklers. The number is $40 trillion.

I’d be exaggerating if I claimed to have covered this appeal closely from the start. In fact, it took Lisa Geary to remind me yesterday that the Court heard oral argument four days ago. Lisa is a brilliant appellate lawyer by way of New York who is now in my original home state of Arkansas, and who I have the honor of working with on a pending Second Circuit appeal. (I also mention Lisa to show that the Purdue issues—the procedural and substantive issues as well as the public policy issues and issues of national-level appellate tradecraft—have captured the attention of bankruptcy- and non-bankruptcy lawyers alike.)

And so while I regret not following the appeal as closely as I would have liked to follow it, I’ve at least tried to stay on top of its important milestones: the District Court’s rejection of the proposed Sackler release (here) and the Second Circuit’s affirmance of that release (here).

Following that approach, here are some useful links if you want to dig deeper into the Supreme Court proceeding and Monday’s oral argument:

• SCOTUSblog.com Purdue Pharma Page
• Oral Argument Audio
• Oral Argument Transcript
• An Excellent Panel Discussion Preview of the Oral Argument (or click here if you use Apple Podcasts—thanks for the heads-up, Lisa!)
• SCOTUSblog.com Lead-up Coverage
• SCOTUSblog.com Post-argument Coverage

I listened to the argument in the car, to and from work.

From the questioning, the ultimate tension is between (i) can we approve this release and (ii) don’t we have to approve the relesae if the victims are going to get a meaningful recovery? And if we link it to the central Bankruptcy Code provision at issue, is the proposed Sackler release an “appropriate [Chapter 11 plan] provision” under 11 U.S.C. § 1123(b)(6) that is “not inconsistent with the applicable provisions of” the Code?

This morning, I reached out to Prof. Melissa Jacoby at UNC Law, who has followed the Purdue Pharma and other recent mass tort bankruptcy cases very closely. She was also nice enough to give Plan Proponent quotes for the District Court and Second Circuit milestones in ’21 and ’23.

And after listening to the justices go back and forth for almost two hours, I agree with Prof. Jacoby that, while the “marketplace [is] flooded with quick takes,” the “argument defied an easy conclusion.” Additionally, Prof. Jacoby suggested the following points (which I’ll leave you with and will consider when reading over the written transcript):

• The “oral argument was all over the place in terms of legal issues and factual assumptions and focal points.” 
• The justices’ “queries far exceeded the question presented regarding statutory authority for nonconsensual liability shields.” 
• “Anyone who is sure about how the court is going to rule, and the breadth of the ruling, has a better crystal ball than I do.”
• “I thought that Justice Amy Coney Barrett and Justice Brown Jackson asked the most well-informed questions in terms of the factual record, the statutory provisions at issue, and the overall dynamics.”

With a little help from friends, I’ll continue to watch this appeal as it wraps up.

If you’d like to stay on top of this and other important bankruptcy issues, then you can subscribe to Plan Proponent via email here.

Eight years ago, in Plan Proponent’s inaugural year, I did my first and, until today, only pure Thanksgiving post (including now 13 year old Kate B’s above turkey art). For 2021 Thanksgiving, I posted Part 3 of the Judge Drake Tribute Series, but that doesn’t count.

A pure post is difficult. While “Thanksgiving” is often referenced in bankruptcy opinions, I had to dig deep in 2015 for something relevant and interesting. That post included filing statistics from 2005 to 2015; cases addressing cutting edge issues about whether “Black Friday” is a holiday for Rule 9006 purposes; and a reference to a 2015 Thanksgiving Day newspaper article about a Florida bankruptcy lawyer who has, since 2011, performed as “Chuckles the Clown” in the Macy’s Thanksgiving Day Parade.

Unfortunately, the well has run dry since 2015 on interesting Thanksgiving-related bankruptcy stuff. Thus, click here for the original post (it’ still pretty good) and enjoy these updated, live filing stats since 2015.

Happy Thanksgiving!

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