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You Just Can't Give It Away
Part Two of a Two-Part Article
Last month, we explained that the proposition that a creditor can do whatever it wants with its recovery from a Chapter 11 debtor may seem to be a fundamental right — but that in the context of confirmation of a Chapter 11 plan, that right may not be unqualified. It may, in fact, violate well-established bankruptcy principles. We went on to explain that one such principle that applies only in the context of non-consensual confirmation of a Chapter 11 plan, or “cramdown,” is commonly referred to as the “absolute priority rule,” a pre-Bankruptcy Code maxim that established a strict hierarchy of payment among claims of differing priorities.
We discussed the fact that the concept of allowing a senior creditor or class of creditors to assign part of its recovery under a Chapter 11 plan to junior creditors or stockholders who would otherwise receive nothing by operation of section 1129(b)(2)(B)(ii) is controversial. This was the subject of the Delaware district court's ruling in In re Armstrong World Industries, Inc., 320 B.R. 523 (D. Del. 2005).
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