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Structured Dismissals and Application of Non-Estate Proceeds

By Adam H. Friedman and Jonathan T. Koevary

Corporate restructuring practice has dramatically evolved in the nearly 40 years since enactment of the 1978 Bankruptcy Code. Since In re Lionel Corp. , 722 F.2d 1063 (2d Cir. 1983), one of the more significant changes to Chapter 11 practice has been the use of section 363 to sell the assets of a debtor, prior to confirmation of a plan, as a means to restructure and maximize value. This transactional use of the Bankruptcy Code has, by necessity, changed how cases are administered. With more frequent under-water balance sheets and ever evolving, more complex capital structures, many modern cases have required flexible approaches. Practitioners and bankruptcy courts have been forced to adapt. Two recent precedential decisions from the U.S. Court of Appeals for the Third Circuit provided a much-needed stamp of approval on these flexible and pragmatic approaches to modern restructuring practice.

Structured Dismissal As 'The Least Bad Alternative'

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