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Talk to an African-American Bankruptcy and Debt Lawyer in the United States We will submit your legal issue to licensed, pre-screened African-American bankruptcy and debt lawyers in United States who match your search criteria. Verify optional. Verification Code. See In re Continental Airlines , F. Nevertheless, bankruptcy courts within the Third Circuit have acknowledged that such releases are permissible in certain instances. See, e. Operating Co. Similarly, although the First and Eighth Circuits have not addressed the issue, bankruptcy courts in these circuits have permitted nonconsensual third party releases.
Fidelis, Inc. After surveying the case law, the First Energy court paused to distinguish the circumstances of First Energy from the seminal cases permitting nonconsensual releases.
The court noted that in precedent cases allowing nonconsensual third party releases, many of which were mass tort cases, the debtors were the primary obligor for the claims being resolved under the plan. In First Energy, however, the releases were intended to cover not just claims against the debtors, but independent, standalone claims against nondebtors held by any party that also held a claim against the debtors.
In addition, the precedent cases involved a pool of assets set aside, at least in part, by the parties receiving the releases for the benefit of creditors deemed to be releasing their claims. On the other hand, in First Energy, the plan contemplated paying only those creditors with liquidated claims despite including nonconsensual releases deemed to have been provided by holders of unliquidated contingent claims namely, certain claims related to environmental cleanup obligations and other damages held by the U.
Environmental Protection Agency, the U. The court then turned to the Dow Corning factors relevant to determining whether a nonconsensual third party release provision passes muster in the Sixth Circuit.
Second, the court determined that the third party release provision was not essential to the reorganization because, in this particular case, the debtor had expressly agreed to assume liability for many of the claims against nondebtors that were being released. Third, the court said that the creditors deemed to be giving the third party releases were not, as Dow Corning requires, voting overwhelmingly in favor of the plan because they were not entitled to vote on the plan at all.
In any case, even though the court concluded that the debtors may have been able to establish this factor at the confirmation hearing, it was apparently not enough to save the plan.
Finally, we would be remiss if we did not point out some of the parallels between the First Energy decision and the recent decision issued by the U.