1 Analyses of this federal-register by attorneys

  1. Getting Public Information in Chapter 11

    Kramer Levin Naftalis & Frankel LLPThomas Moers MayerDecember 15, 2023

    o the restructuring, such as professional fees. These are not deductible as current expenses but rather capitalized, which can make the debtor’s taxable income in Chapter 11 materially higher than the debtor’s after-tax cash flow in Chapter 11.The MOR also distinguishes obligations that were incurred prior to the filing of the bankruptcy petition (i.e., “pre-petition liabilities”) and those incurred after the filing (i.e., “post-petition liabilities”).SeeASC 852-10. Pre-petition liabilities are further segregated into those that are “subject to compromise” (such as general unsecured claims that may be settled for lesser amounts) from those that are not subject to compromise (such as claims for goods sold within 20 days of the petition entitled to priority under Section 503(b)(9)) and must be paid in full.Id.Notably, during the public comment period, there were competing comments regarding whether the new MOR form should contain information similar to that required by SEC filings.See85 Fed. Reg. 82905 (Dec. 21, 2020). For example, one commenter proposed that debtors should be required to include projections, risk factors, potential conflicts of interest, and other material financial information, including management discussions and analysis, insider transactions, and material company events.Id. at 82907. Another commenter suggested that debtors with assets exceeding $100 million should be required to include an extensive list of supporting documentation.Id. The same commenter further asserted that parties in interest should have the right to seek supplemental documentation from debtors with assets less than $100 million by petitioning the U.S. Trustee or the court.Id.The Office of the U.S. Trustee’s response was that requiring information disclosures akin to SEC filings “is impractical, expensive, and burdensome.”Id. Thus, the goal of the new MOR form was to strike a balance between enough disclosure to provide the public with the information it needs to accurately assess the case,