BankruptcyProf Blog

Harvey Miller Testimony Before the House re Chapter 11

Harvey Miller's testimony before the House on Wednesday is great.  You can access it here.   The House subcommittee was "concerned" that chapter 11 perhaps is not working anymore since Circuit City failed so quickly and went out of business leaving 34,000 employees stranded.  The Weil Gotschal mega bankruptcy attorney argues that chapter 11 in 1978, designed to rehabilitate distressed debtors, has been whittled away by special interest groups to the point that today the prime objective of chapter 11 is the maximization of creditor recovery.  He says:

"Thus, chapter 11, more often than not, is used as a means to validate and sterilize the sale of a debtor’s assets. This is accomplished by the use of section 363(b) of the Bankruptcy Code to effect a
expeditious sale of all or substantially all of the debtor’s assets, early in the case, to expedite
distributions, essentially, to secured creditors. The process provides early gratification of the
secured creditors and gives buyers the benefit of asset sales that are blessed by a court and, often,
are free and clear of liens, encumbrances and claims pursuant to section 363(f) of the Bankruptcy
Code."

"Virtually every group with an effective lobbyist came forward and was able to obtain special interest legislation that included protections for personal property equipment lessors, commercial property owners, shopping center owners and lessors, financial institutions, government agencies, unions, and
retirees, to name just a few. The biggest special interest victory is the ill-conceived BAPCPA."

He cites specifically the time restrictions for assuming leases and for filing plans.  Because the chapter 11 must assume or reject leases and file a plan early or liquidate, it will more often concede early that it cannot reorganize and therefore must liquidate. 

In fairness, he also points out that retailers did not, until a few years ago, generally give lenders a security interest in the inventory.  Today they do which makes inventory vendors more nervous for obvious reasons and creates a cash collateral problem which simply cannot be resolved at the beginning of the case without simply acceding to the demands of the cash collateral creditor. 

Fleetwood Homes First Day Declaration

You can access the first day declaration here.  The hearing on the first day motions is today at 2:00 p.m. in Riverside.  Meredith Jury is a great judge for this case.

Fleetwood Homes Files Chapter 11 in Riverside

U.S. Bankruptcy Court
Central District Of California (Riverside)
Bankruptcy Petition #: 6:09-bk-14254-MJ

Assigned to: Meredith Jury Chapter 11

Date filed:   03/10/2009

Debtor Fleetwood Enterprises Inc. 3125 Myers Street P.O. Box 7638 Riverside, CA 92513 951-351-3500 Tax ID / EIN: 91-2120567	represented by	Craig Millet 4 Park Plaza #1400 Irvine, CA 92614 949-451-3986 Fax : 949-475-4651 Email: cmillet@gibsondunn.com
U.S. Trustee United States Trustee (RS) 3685 Main Street, Suite 300 Riverside, CA 92501

Update on Supreme Court Decisions this Year

Scotusblog.com has a nice summary of cases decided this year which can be accessed here.  What jumps out of course is that the Supremes have ruled on seven 9th Circuit cases so far and reversed six of them. The other was "affirmed in part."  In total, the Supremes have ruled on 30 cases and affirmed only six of those. 

Judge Randall Newsome Research Binder Updated

Judge Newsome has added a table of contents and updated his research binder through Vol. 395 of the Bankruptcy Reporter.  Its all 9th Circuit and invaluable to the bankruptcy lawyer.  It is one of the few things I have printed out and have in a notebook at my desk.  You can access the new version here.  Judge Newsome deserves a beer from all of us.