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Section 1129 Confirmation of plan (Judge Gargotta)

In re Palmaz Scientific Inc. and ABPS Venture One, Ltd (November 22, 2016)

Issue(s):  Whether (1) the provisions of the confirmation order and plan placing D&O policies in a litigation trust bar all claims brought against the debtor’s former directors and officers that will have an effect on those D&O policies; and (2) the claims asserted by State Court Plaintiffs are direct or derivative claims.

Holding(s): (1) The Court held that the confirmation order and plan provisions did not serve to bar all claims against debtor’s former directors and officers because the provisions contained qualifying language barring only claims “resulting in damage to the Debtors.”  (2) Under the Supreme Court of Texas standard set in Wingate v. Hajdik, 795 S.W.2d 717, 719 (Tex. 1990), a claim is direct “where the wrongdoer violates a duty arising from contract or otherwise, and owing directly by him to the stockholder.” Here, the Court held that allegations relating to wrongdoing in directors’ and officers’ solicitation of investments from individual Plaintiffs supported only personal causes of action and personal injury so that Plaintiffs’ claims could not be considered derivative.

In re Mangia Pizza Investments, LP (June 14, 2012)
Issue: Can either the Debtor’s or Creditor Cloud Cap’s competing Plan be confirmed?
Holding: Debtor’s Plan is denied because it is not feasible under § 1129(a)(11) and it violates the absolute priority rule of § 1129(b)(2)(B)(ii). It also discriminates against an equity owner of the Debtor. The fact that Creditor acquired a claim and then proposed a plan is not per se bad faith. The Creditor’s Plan, however, is also not confirmed, but they may file a non-material modification to deal with exculpation, releases, default language, and other mechanical provisions. Further, Creditor must provide for the payment of the Debtor’s counsel and demonstrate that they have the funds to pay all administrative, secured, and priority claims, and make a distribution to unsecured creditors on a pro rata basis at 22%.

In re Introgen Therapeutics, Inc. (April 29, 2010)
Issue: Whether two debtors can be substantively consolidated in an order confirming plan, and whether the interest retained by Class 4-Equity is a violation of the Absolute Priority Rule such that Modified Plan of Reorganization under Chapter 11 may be confirmed?
Holding: The Plan as modified is confirmable and satisfies all confirmation requirements under 11 U.S.C. §1129.

In re Save Our Springs (S.O.S.) Alliance, Inc. (August 11, 2008)
Issue: Is Debtor a “Small Business Debtor” as Defined in 11 U.S.C. § 101(5D) and is this case a “Small Business Case” as Defined in 11 § 101(5D) and/or should the Debtor be judicially and/or equitably estopped from denying that it is a small business debtor as originally claimed in this case?
Holding: The Court finds that the Debtor is a small business debtor, being judicially and equitably estopped at this stage of the case from changing that position.

In re Save Our Springs (S.O.S.) Alliance, Inc. (June 16, 2008)
Issue: Should the Court (1) alter or amend its order denying confirmation of the Debtor’s First Amended Plan of Reorganization and/or (2) grant a new trial to allow the Debtor to present additional evidence in support of confirmation of the Plan?
Holding: The Court is unaware of any precedent for confirming a plan based on the principals’ beliefs, in lieu of substantiation, regarding prospects for payment. The evidence offered by the Debtor is not newly discovered so the Court denies the Motion.

In re Save Our Springs (S.O.S.) Alliance (April 14, 2008)
Issue: Whether (1) the deadline to obtain confirmation can or should be extended; (2) designation of vote was cast in bad faith, and (3) Plan should be confirmed or denied due to: gerrymandering by improper classification, lack of an impaired accepting class, best interest of creditors test not met, feasibility, discharge is not permissible where the plan in essence does not provide for the Debtor’s continuation in “business”, cramdown is not permissible where insider claims are not subordinated to payment in full of all other claims, lack of good faith?
Holding: The Court finds that the Motion to Extend Time should be Granted in part and Denied in part, the Vote Designation Motion should be Denied, and confirmation of the Debtor’s Plan should be Denied.