Section 1129(b)(2) of the Bankruptcy Code provides that a plan is 'fair and equitable' with respect to a dissenting impaired class of unsecured claims if the creditors in the class receive or retain property of a value equal to the allowed amount of their claims or, failing that, no creditor of lesser priority, or shareholder, receives any distribution under the plan. Among these is the mandate that a plan be 'fair and equitable' with respect to dissenting classes of creditors and shareholders. If a class of creditors or shareholders votes to reject a chapter 11 plan, it can be confirmed only if the plan satisfies the requirements of section 1129(b) of the Bankruptcy Code. Of Unsecured Creditors (In re Iridium Operating LLC), the Second Circuit ruled that the most important consideration in determining whether a pre-plan settlement of disputed claims should be approved as being 'fair and equitable' is whether the terms of the settlement comply with the Bankruptcy Code's distribution scheme.Ĭram-Down and the Fair and Equitable Requirement A decision recently issued by the Second Circuit Court of Appeals, however, indicates that the dictates of the absolute priority rule must be considered in contexts other than confirmation of a plan. Most of the court rulings handed down recently concerning this issue have examined the rule's application to the terms of a proposed chapter 11 plan that provides for the distribution of value to junior creditors without paying senior creditors in full.

The rule's continued application under the current statutory scheme has been a magnet for controversy. Under certain circumstances, however, senior class 'gifting' or 'carve outs' from senior class recoveries may violate a well-established bankruptcy principle commonly referred to as the 'absolute priority rule,' a maxim predating the enactment of the Bankruptcy Code that established a strict hierarchy of payment among claims of differing priorities. 'Give ups' by senior classes of creditors to achieve confirmation of a plan have become an increasingly common feature of the chapter 11 process, as stakeholders strive to avoid disputes that can prolong the bankruptcy case and drain estate assets by driving up administrative costs.

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