Nestle Waters North America, Inc. v. Mountain Glacier LLC (In re Mountain Glacier LLC)

(Sixth Circuit Dec. 11, 2017)

The Sixth Circuit affirms the bankruptcy court’s decision finding the reorganized Chapter 11 debtor retained its claims against the defendant in a pre-petition arbitration. The court finds that the debtor sufficiently identified the claim in its disclosure statement and the plan provided that it would be transferred to the reorganized debtor. Nothing more was required to retain the claim. Opinion below.

Judge: Thapar

Attorney for Debtor: Bradley Arant Boult Cummings, William L. Norton, III

Attorneys for Defendant: Pepper Hamilton, Robert S. Hertzberg, Deborah T. Kovsky-Apap; Baker Donelson, Courtney Hunter Gilmer, John Hayden Rowland

2017-12-11 – in re mountain glacier

Author: Matt Lindblom

Harper v. The Oversight Committee (In re Conco, Inc.)

(6th Cir. April 28, 2017)

The Sixth Circuit affirms the district court and the bankruptcy court, holding that the sale of certain equity interests in the debtor to third parties was prohibited by the confirmed Chapter 11 plan. While the plan was silent as to such sales, the bankruptcy court did not abuse its discretion when interpreting the plan and considering the intent of the parties based on the negotiations that resulted in the final confirmed plan. Opinion below.

Judge: Donald

Attorneys for Appellants: Frost Brown Todd, Edward Michael King, John Scott Egan, Cory J. Skolnick; Hahn & Hessen, Gilbert Backenroth; Kaplan & Partners, David S. Kaplan, Casey Leigh Hinkle

Attorneys for Appellee: Bingham Greenbaum Doll, John K. Bush, Claude R. Bowles, Jr., James R. Irving; Seiller Waterman, Neil C. Bordy, Glenn Alan Cohen, Keith James Larson

2017-04-28 – in re conco

District Court Opinion

Bankruptcy Court Opinion

Author: Matt Lindblom

Korean Claimants v. Debtor’s Representatives (In re Settlement Facility Dow Corning Trust)

(6th Cir. Nov. 23, 2016)

The Sixth Circuit affirms the 2015 consent order specifying the manner in which certain provisions of the confirmed Chapter 11 plan would apply to a class of claim holders. The Korean Claimants objected, arguing that the district court lacked authority to enter the consent order and that the consent order was an impermissible modification of the distribution agreement. The court holds that the court had the requisite authority to enter the consent order and it merely clarified the distribution agreement rather than modified it. Opinion below.

Judge: Kethledge

Attorney for Claimants: Yeon Ho Kim

Attorneys for Debtor Entities: Deborah E. Greenspan, Jeffrey S. Trachtman, Ernest H Hornsby, Dianna Pendleton-Dominguez


Author: Matt Lindblom

Harper v. Conco ESOP Trustees

(W.D. Ky. July 7, 2016)

The district court affirms the bankruptcy court’s order enjoining the transfer of certain equity interests in the reorganized chapter 11 debtor because it violated the terms of the confirmed plan. The court determines that the bankruptcy court interpreted rather than modified the plan and thus the district court reviews the appealed order for abuse of discretion. While the plan did not expressly prohibit the transfer of the equity interests, the facts surrounding the negotiation and confirmation of the plan clearly evidenced the interested parties’ intent to prohibit such transfer until a certain date. Opinion below.

Attorneys for Appellants: Kaplan & Partners, LLP, Casey L. Hinkle, David S. Kaplan; Keller Rohrback LLP, David S. Preminger; Frost Brown Todd LLC, Cory J. Skolnick, Edward M. King, John S. Egan; Hahn & Hessen LLP, Gilbert Backenroth, Jeffrey Zawadzki; Seiller Waterman, LLC, Neil Charles Bordy

Attorneys for ESOP Trustees: Stoll Keenon Ogden PLLC, Lea Pauley Goff, P. Douglas Barr

Attorneys for Oversight Committee: Bingham Greenebaum Doll LLP, Claude R. Bowles, Jr., James R. Irving, John W. Ames

2016-07-07 – harper v conco esop trustees


Author: Matt Lindblom


Kentucky Employees Retirement System v. Seven Counties Services, Inc.

(W.D. Ky. Mar. 31, 2016)

The district court affirms the bankruptcy court’s decision finding that Seven Counties Services, Inc. was permitted to file for Chapter 11 bankruptcy relief because it was not a “governmental unit” as defined in the bankruptcy code. Further, the debtor’s contract with KERS was properly deemed an executory contract that could be rejected by the debtor. The court makes one factual correction to the record, but the bankruptcy court’s decision is affirmed in all other respects. Opinion below.

Judge: Hale

Attorneys for KERS: Ice Miller LLP, Daniel R. Swetnam, Tyson A. Crist, Victoria E. Powers

Attorneys for Debtor: Seiller Waterman, LLC, David Cantor, Tyler R. Yeager, Gray & White, Paul Joseph Hershberg, Bingham Greenebaum Doll LLP, Philip C. Eschels, Wyatt Tarrant & Combs LLP, Theodore T. Myre, Jr.

2016-03-31 – kers v seven counties services

Author: Matt Lindblom

In re Conco, Inc.

(Bankr. W.D. Ky. Feb. 18, 2016)

The bankruptcy court grants the oversight committee’s motion to enforce the confirmed Chapter 11 plan. The plan provided that certain equity security interests could be retained by their prepetition holders so long as no payments were made on them and they were not transferred until January 1, 2019. The unsecured creditors committee permitted this (despite the violation of the absolute priority rule) because it was understood that the proposed plan gave them the best possible outcome in the case. The debtor’s competitor sought to purchase the equity interests post-confirmation, and the oversight committee sought to enjoin the sale through its motion. The court holds that this particular plan provision was the result of lengthy negotiations and the unsecured creditors should receive the benefit of that bargain. Opinion below.

2016-02-18 – in re conco, inc

Author: Matt Lindblom

Village Green I, GP v. Federal National Mortgage Association (In re Village Green I, GP)

(6th Cir. Jan. 27, 2016)

The Sixth Circuit affirms the district court’s finding that the Chapter 11 plan was proposed in bad faith. The plan proposed to pay small claims in full but over a 60-day period. This class of claims was technically impaired due to the delayed payment and it voted to accept the plan. The principle secured lender appealed. The Court finds that the plan was not proposed in good faith, as required by 11 U.S.C. § 1129(a)(3), because it was designed to circumvent  § 1129(a)(10)’s requirement for an accepting impaired class of claims. Opinion below.

2016-01-27 – in re village green

Author: Matt Lindblom

Brown v. UAL Corporation (In re UAL Corporation)

(7th Cir. Dec. 31, 2015)

The Seventh Circuit affirms the bankruptcy court’s decision to deny the motion to reopen the chapter 11 case. The movant sought to reopen the case to pursue pre-petition state law claims of employment discrimination. The matter had been pending in the bankruptcy court during the bankruptcy case, but the movant had failed to diligently pursue the claims at that time. The court finds that the bankruptcy court did not abuse its discretion in denying the motion. Opinion below.

2015-12-31 – brown v ual corp

Author: Matt Lindblom

In re Nierzwicki Holdings, LLC

(Bankr. E.D. Ky. Dec. 30, 2015)

The bankruptcy court denies the motion for stay relief to proceed with prepetition litigation. The movants were seeking to enjoin the debtors’ operation of a nightclub due to an alleged noise nuisance. The bankruptcy court applies the factors for considering whether stay relief should be granted to allow prepetition litigation to continue. While some of the factors were not determinative, allowing the litigation to continue would cause serious damage to the debtors’ reorganization efforts. The court ultimately concludes that stay relief is inappropriate. Opinion below.

2015-12-30 – in re nierzwicki holdings

Author: Matt Lindblom

In re Dave’s Detailing, Inc.

(Bankr. S.D. Ind. July 30, 2015)

In this lengthy opinion, the bankruptcy court declines to confirm two competing Chapter 11 plans. The debtor’s plan is not confirmed because it is not feasible under § 1129(a)(11) and it is not “fair and equitable” under § 1129(b). The other plan, proposed by the debtor’s competitor and largest unsecured creditor, can not be confirmed because certain claims are not properly classified and the plan unfairly discriminates against a class of creditors. The opinion provides a good discussion of standards under § 1129. Opinion below.

2015-07-30 – in re daves detailing

Author: Matt Lindblom