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: Calculated RiskChrysler Bankruptcy: Take III
By Anonymous
Chrysler Bankruptcy Analysis - Part III: Will The "Absolute Priority Rule" Kill The Sale?
... Chrysler's (and soon GM's) court battles afford us a rare opportunity to witness one of bankruptcy law's most fundamental questions being litigated in the highest stakes battles of all time, that being:Fascinating stuff. And the clock is ticking ...When does the "absolute priority rule" (see FRB-Cleveland's strict construction of the rule back in 1996 here and compare it to the US Government's position today), which establishes a hierarchy of recovery rights among creditor classes, take a back seat to the "fresh start," rehabilitative policy of chapter 11?Chrysler's opening memorandum touched upon this question by focusing on the US Supreme Court'd classic pronouncement in NLRB v. Bildisco & Bildisco, 465 U.S. 513, 528 (1984), where the Court stated that the "fundamental purpose of reorganization is to prevent the debtor from going into liquidation, with an attendant loss of jobs and possible misuse of economic resources." This principle, Chrysler argues, is paramount and (quoting NY's judicial patriarch, Bankruptcy Judge Lifland, in the old Eastern Airline case) "all other bankruptcy policies are subordinated" to it. (Mem. at 4).Many, however, will surely disagree that with Judge Lifland's statement from 20 years ago that bankruptcy policies should be subordinated to the reorganization objectives of the Bankruptcy Code.
Full post as published by Calculated Risk on May 05, 2009 (boomark / email).
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