Chapter 11, Title 11, United States Code
Chapter 11 is a chapter of Title 11, the United States Bankruptcy Code, which permits reorganization under the bankruptcy laws of the United States. Chapter 11 bankruptcy is available to every business, whether organized as a corporation, partnership or sole proprietorship, and to individuals, although it is most prominently used by corporate entities. In contrast, Chapter 7 governs the process of a liquidation bankruptcy, though liquidation can be done under Chapter 11 also; while Chapter 13 provides a reorganization process for the majority of private individuals.
|Bankruptcy in the|
|Bankruptcy in the United States|
|Aspects of bankruptcy law|
Chapter 11 overview
In Chapter 11, in most instances the debtor remains in control of its business operations as a debtor in possession, and is subject to the oversight and jurisdiction of the court.
A Chapter 11 bankruptcy will result in one of three outcomes for the debtor: reorganization, conversion to Chapter 7 bankruptcy, or dismissal. In order for a chapter 11 debtor to reorganize, the debtor must file (and the court must confirm) a plan of reorganization. In effect, the plan is a compromise between the major stakeholders in the case, including the debtor and its creditors. Most chapter 11 cases aim to confirm a plan, but that may not always be possible.
If the judge approves the reorganization plan and the creditors all agree, then the plan can be confirmed. Section 1129 of the Bankruptcy Code requires the bankruptcy court reach certain conclusions prior to confirming or approving the plan and making it binding on all parties in the case, most notably that the plan complies with applicable law and was proposed in good faith.11 U.S.C. § 1129 The court must also find that the reorganization plan is feasible in that, unless the plan provides otherwise, the plan is not likely to be followed by further reorganization or liquidation.
Features of Chapter 11 reorganization
Chapter 11 retains many of the features present in all, or most, bankruptcy proceedings in the U.S. It provides additional tools for debtors as well. Most importantly, 11 U.S.C. § 1108 empowers the trustee to operate the debtor's business. In Chapter 11, unless a separate trustee is appointed for cause, the debtor, as debtor in possession, acts as trustee of the business.
Chapter 11 affords the debtor in possession a number of mechanisms to restructure its business. A debtor in possession can acquire financing and loans on favorable terms by giving new lenders first priority on the business's earnings. The court may also permit the debtor in possession to reject and cancel contracts. Debtors are also protected from other litigation against the business through the imposition of an automatic stay. While the automatic stay is in place, creditors are stayed from any collection attempts or activities against the debtor in possession, and most litigation against the debtor is stayed, or put on hold, until it can be resolved in bankruptcy court, or resumed in its original venue.
If the business is insolvent, its debts exceed its assets and the business is unable to pay debts as they come due,
One controversy that has broken out in bankruptcy courts concerns the proper amount of disclosure that the court and other parties are entitled to receive from the members of the ad hoc creditor's committees that play a large role in many such proceedings.
Chapter 11 plan
Chapter 11 usually results in reorganization of the debtor's business or personal assets and debts, but can also be used as a mechanism for liquidation. Debtors may "emerge" from a chapter 11 bankruptcy within a few months or within several years, depending on the size and complexity of the bankruptcy. The Bankruptcy Code accomplishes this objective through the use of a bankruptcy plan. The debtor in possession typically has the first opportunity to propose a plan during the period of exclusivity. This period allows the debtor 120 days from the date of filing for chapter 11, to propose a plan of reorganization before any other party in interest may propose a plan. If the debtor proposes a plan within the 120-day exclusivity period, a 180-day exclusivity period from the date of filing for chapter 11 is granted in order to allow the debtor to gain confirmation of the proposed plan. With some exceptions, the plan may be proposed by any party in interest. Interested creditors then vote for a plan.
Once the disclosure statement is given the “OK”, the plan proponent will solicit votes from the classes of creditors. Solicitation is the process by which creditors vote on the proposed confirmation plan. This process can be complicated if creditors fail or refuse to vote. In which case, the plan proponent might tailor his or her efforts in obtaining votes, or the plan itself. The plan may be modified before confirmation, so long as the modified plan meets all the requirements of Chapter 11.In order to proceed to the confirmation hearing, the disclosure statement must be approved by the bankruptcy court.
Like other forms of bankruptcy, petitions filed under chapter 11 invoke the automatic stay of § 362.
In the new millennium airlines have fallen under intense scrutiny for what many see as abusing Chapter 11 Bankruptcy as a simple tool for escaping labor contracts, usually 30-35% of an airline's operating cost. Every major US airline has filed for Chapter 11 since 2002. In the space of 2 years (2002–2004) US Airways filed for bankruptcy twice leaving the AFL-CIO, pilot unions and other airline employees claiming the rules of Chapter 11 have helped turn the USA into a corporatocracy.
As a general rule, administrative expenses (the actual, necessary expenses of preserving the bankruptcy estate, including expenses such as employee wages, and the cost of litigating the chapter 11 case) are paid first. Secured creditors—creditors who have a security interest, or collateral, in the debtor's property—will be paid before unsecured creditors. Unsecured creditors' claims are prioritized by § 507. For instance the claims of suppliers of products or employees of a company may be paid before other unsecured creditors are paid. Each priority level must be paid in full before the next lower priority level may receive payment.
Section 1110 (11 U.S.C. § 1110) generally provides a secured party with an interest in an aircraft the ability to take possession of the equipment within 60 days after a bankruptcy filing unless the airline cures all defaults. More specifically, the right of the lender to take possession of the secured equipment is not hampered by the automatic stay provisions of the U.S. Bankruptcy Code.
If the company's stock is publicly traded, a Chapter 11 filing generally causes it to be delisted from its primary stock exchange if listed on the New York Stock Exchange, the American Stock Exchange, or the NASDAQ. On the NASDAQ the identifying fifth letter "Q" at the end of a stock symbol indicates the company is in bankruptcy
airline industry in the United States; in 2006 over half the industry's seating capacity was on airlines that were in Chapter 11. These airlines were able to stop making debt payments, break their previously agreed upon labor union contracts, freeing up cash to expand routes or weather a price war against competitors — all with the bankruptcy court's approval.An example is the
Chapter 11 cases dropped by 60% from 1991 to 2003. One 2007 study found this was because businesses were turning to bankruptcy-like proceedings under state law, rather than the federal bankruptcy proceedings, including those under chapter 11. Insolvency proceedings under state law, the study stated, are currently faster, less expensive, and more private, with some states not even requiring court filings. However, a 2005 study claimed the drop may have been due to an increase in the incorrect classification of many bankruptcies as "consumer cases" rather than "business cases".
The largest bankruptcy in history was of the US investment bank Lehman Brothers Holdings Inc., which listed $639 billion in assets as of its Chapter 11 filing in 2008. The 16 largest corporate bankruptcies as of 13 December 2011:
- Company did not emerge from Chapter 11 bankruptcy
|Company||Filing date||Total Assets pre-filing||Assets adjusted to the year 2012||Filing court district|
|Lehman Brothers Holdings Inc. #||2008-09-15||$639,063,000,800||$744 billion||NY-S|
|Washington Mutual #||2008-09-26||$327,913,000,000||$382 billion||DE|
|Worldcom Inc.||2002-07-21||$103,914,000,000||$145 billion||NY-S|
|General Motors Corporation||2009-06-01||$82,300,000,000||$96.1 billion||NY-S|
|CIT Group||2009-11-01||$71,019,200,000||$82.9 billion||NY-S|
|Enron Corp. #‡||2001-12-02||$63,392,000,000||$89.7 billion||NY-S|
|Conseco, Inc.||2002-12-18||$61,392,000,000||$85.5 billion||IL-N|
|MF Global #||2011-10-31||$41,000,000,000||$45.7 billion||NY-S|
|Chrysler LLC||2009-04-30||$39,300,000,000||$45.9 billion||NY-S|
|Texaco, Inc.||1987-04-12||$35,892,000,000||$79.2 billion||NY-S|
|Financial Corp. of America||1988-09-09||$33,864,000,000||$71.7 billion||CA-C|
|Penn Central Transportation Company #||1970-06-21||$7,000,000,000||$45.2 billion||PA-S|
|Refco Inc. #||2005-10-17||$33,333,172,000||$42.8 billion||NY-S|
|Global Crossing Ltd.||2002-01-28||$30,185,000,000||$42 billion||NY-S|
|Pacific Gas and Electric Co.||2001-04-06||$29,770,000,000||$42.1 billion||CA-N|
|UAL Corp.||2002-12-09||$25,197,000,000||$35.1 billion||IL-N|
|Delta Air Lines, Inc.||2005-09-14||$21,801,000,000||$28 billion||NY-S|
|Delphi Corporation, Inc.||2005-10-08||$22,000,000,000||$28 billion||NY-S|
Enron, Lehman Brothers, MF Global and Refco have all ceased operations while others were acquired by other buyers or emerged as a new company with a similar name.
‡ The Enron assets were taken from the 10-Q filed on November 11, 2001. The company announced that the annual financials were under review at the time of filing for Chapter 11.
- "Chapter 11 – Bankruptcy Basics". United States Courts. Retrieved 5 August 2015.
- "Chapter 7 - Bankruptcy Basics". Uscourts. 2019-03-11.
- Joseph Swanson and Peter Marshall, Houlihan Lokey and Lyndon Norley, Kirkland & Ellis International LLP (2008). A Practitioner's Guide to Corporate Restructuring. City & Financial Publishing, 1st edition ISBN 978-1-905121-31-1
- "Chapter 11 - Bankruptcy Basics". United States Courts. Retrieved 7 June 2019.
- Friedland JP, Vandesteeg, EB, et al. (2019). Commercial Bankruptcy Litigation, 2d (2019 ed.). Toronto, Ontario, Canada: Thomson Reuters. pp. §10:1. ISBN 978-1539233688.
- Friedland, Vandesteeg & Hammeke, Jonathan P., Elizabeth B., & Robert (2019). Strategic Alternatives For and Against Distressed Businesses. Toronto, Ontario, Canada: Thomson Reuters. pp. §4:12. ISBN 978-1-539-23380-0.
- Broude, Richard F. (February 1984). "Cramdown and Chapter 11 of the Bankruptcy Code: The Settlement Imperative". The Business Lawyer. 39 (2): 441–454.
- 11 U.S.C. § 1107
- "11 U.S. Code § 362 – Automatic stay". Cornell University. Retrieved 5 August 2015.
- "§ 1-201. General Definitions". Retrieved 5 August 2015.
- 1 U.S.C. Sec. 1109 (b)
- "Bankruptcy Rules Committee rethinks 2019 pricing disclosure amid HF panic attack". Financial Times. Retrieved 5 August 2015.
- 11 U.S.C. § 1121
- Ayer, Bernstein & Friedland, John D., Michael & Jonathan P. (January 2015). "Confirming a Plan" (PDF). DailyDAC.
- "Failure of Creditor Class to Cast Vote on Chapter 11 Plan Does Not Equate to Acceptance | Insights | Jones Day". www.jonesday.com. Retrieved 2019-08-05.
- "Chapter 11 – Bankruptcy Basics". United States Courts.
- Friedland, Vandesteeg & Hammeke, Jonathan P., Elizabeth B. & Robert (2019). Commercial Banking Litigation. Toronto, Ontario, Canada: Thomson Reuters. pp. §10:7. ISBN 978-1-539-23368-8.
- "massachusetts institute of technology: Airline Data Project". MIT.
- Davies, Richard (Nov 29, 2011). "AMR Files for Bankruptcy: The Last Giant to Fall". ABC News. Retrieved 19 May 2012.
- Warner, Margeret (Sep 13, 2004). "US Airways Files....Again". Public Broadcasting Service. Retrieved 19 May 2012.
- Jablonski, Donna. "AFL-CIO Cries Foul". AFL-CIO. Archived from the original on 3 June 2012. Retrieved 19 May 2012.
- Trumbul, Mark (Nov 29, 2011). "AMR Files for Chapter 11". The Christian Science Monitor. Retrieved 19 May 2012.
- "11 U.S. Code § 503 – Allowance of administrative expenses". Retrieved 5 August 2015.
- "Q Definition". Investopedia.
- Isidore, Chris; Senior, /Money (2005-09-14). "Delta and Northwest airlines both file for bankruptcy". CNN. Retrieved November 17, 2005.
- "The night of the killer zombies". Economist.com. 2002-12-12. Retrieved 2006-08-05.
- "3 Deadlines to Beware of When Filing a Chapter 11 Bankruptcy". DCDM. 2014-02-17. Retrieved 2014-10-15.
- (January 24, 2007), "Small Firms Spurn Chapter 11", Wall Street Journal, page B6B
- "Bankruptcy Reorganization Chapter". Retrieved 5 August 2015.
- "Bankruptcy Reorganization Chapter". Retrieved 5 August 2015.
- Dascher, Paul E. (1 January 1972). "The Penn Central Revisited: A Predictable Situation". Financial Analysts Journal. 28 (2): 61–64. doi:10.2469/faj.v28.n2.61. JSTOR 4470905.