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'Megabankruptcies': Changes On the Way?

By Anthony Michael Sabino and Mary Jane Sabino

Across the nation, readers of this publication are plagued daily with myriad problems associated with “megabankruptcies” and complex reorganization cases, and sometimes with Chapter 11s that are just large enough to be cumbersome and unwieldy, but too important and/or lucrative to pass up. Notwithstanding what is generally the statutory clarity of the Bankruptcy Code, many of the solutions to these nettlesome issues have evolved on an ad hoc basis, and are often the creatures of local customs and practice, if not the rules and procedures of individual judges. Putting aside the natural peaks and valleys of Chapter 11 filings, these issues persist, no matter the economic climate.

Certainly, the legal and business communities are not alone in their despair; the bankruptcy judges share it, too, and the more thoughtful of their number would like to solve some of these problems, and thus do their job better. Thus, it comes as no surprise that a working subgroup of the Federal Judicial Center convened a “Conference on Large Chapter 11 Cases,” and recently released a detailed report (See the June 9, 2004 daily edition of the newsletter for ABIWorld, the Web site of the American Bankruptcy Institute at www.abiworld.org). The conference report not only addresses some of the more pressing problems, it makes some suggestions for beneficial change that, even if not enacted into statute or the Federal Rules of Bankruptcy Procedure, could become the foundation for judges' individual rules or set new standards for local or even national “best practices.” Given this potentially far-reaching impact, some analysis and commentary is in order.

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