I am having a hard time getting my head around the 692 licenses being terminated at the time of BK, not a factor in the BK valuation and assigned $0 value,
Essentially the Debtors did not even have possession of the assets at the consummation of the plan but the petition to return the licenses was began pre-bk.
If I look at the criteria of the following:
A challenge to a confirmed plan is presumed to be equitably moot once a debtor's plan of reorganization has been substantially consummated. Looking to Section 1101(2) of the Bankruptcy Code, the court stated that a plan is considered substantially consummated when:
(1) all or substantially all of the proposed property transfers in a plan have taken place;
(2) the successor company has assumed the business or management of the property dealt with by the plan; and
(3) the distributions established in a plan have commenced.
Number 1 is questionable and arguable.
Number 2 is questionable and arguable.
Number 3 is questionable and arguable.
The court also recognized, however, that the presumption of mootness can be rebutted by satisfaction of a five-factor test under the U.S. Court of Appeals for the Second Circuit's precedent:
(1) the court can still order some effective relief;
(2) such relief will not affect the re-emergence of the debtor as a revitalized corporate entity;
(3) such relief will not unravel intricate transactions so as to knock the props out from under the authorization for every transaction that has taken place and create an unmanageable, uncontrollable situation for the bankruptcy court;
(4) the parties that would be adversely affected by the modification have notice of the challenge; and
(5) the challenging party pursued with diligence all available remedies to obtain a stay of execution of the objectionable order.
Number 1 is a yes
Number 2 is a yes
Number 3 is a yes
Number 4 would have to happen
Number 5 is ???
There are many time points and variables to this where it appears and argument can be made that not only do the Common and the Unsecured get to share in the proceeds of the deal but that the Debtors committed borderline fraud or at the very least deceived the court room by assigning a zero value to the licenses during the BK process. How do you assign a value to the near 50 licenses but the near 700 licenses you are fighting over get no valuation and there is essentially no determination or response of the court? How do you assign 3 licenses in limbo to the Pre-Effective Date Estates yet the 691 just seem to go poof?
Keep the discussion going. This is helpful as what appears to me to be fraud, misrepresentation, and deception by the debtors and irresponsibility of the court I just am no legal expert. Is there still a chance if they strike a deal for the rights of those 691 licenses that the court will readdress or is that an impossibility without someone taking action?
