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Tuesday, May 11, 2010 7:37:45 PM
5. But, the Disclosure Statement fails to explain why, after spending nearly a year
and a half in chapter 11 and incurring significant professional fees, the Debtors suddenly chose to
throw up their hands and abandon the effort to maximize stakeholder recoveries. The Disclosure
Statement fails to explain what factors the Debtors considered before agreeing to compromise
potentially valuable rights of the estates and, importantly, critical rights of non-Debtors against
other non-Debtors. As such, the Disclosure Statement fails its primary purpose -- providing
stakeholders with adequate information to consider the Plan and the compromises set forth
therein. And, notwithstanding the Debtors’ anticipated invocation of the “business judgment
rule to gloss over the deficiencies of their disclosure and the proposed settlement, stakeholders
are not required to “take the Debtors’ word for it.” Rather, under Bankruptcy Code Section 1125
and applicable case law, the Court and stakeholders are entitled to receive, in connection with the
solicitation of stakeholder votes, an explanation of the Debtors’ surrender -- information critical
to an informed assessment of the Plan.
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