11 U.S.C. § 1125 — Postpetition disclosure and solicitation

Page 260 TITLE 11—BANKRUPTCY § 1125 EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–353 effective with respect to cases filed 90 days after July 10, 1984, see section 552(a) of Pub. L. 98–353, set out as a note under section 101 of this title. § 1125. Postpetition disclosure and solicitation (a) In this section— (1) ‘‘adequate information’’ means informa- tion of a kind, and in sufficient detail, as far as is reasonably practicable in light of the na- ture and history of the debtor and the condi- tion of the debtor’s books and records, includ- ing a discussion of the potential material Fed- eral tax consequences of the plan to the debt- or, any successor to the debtor, and a hypo- thetical investor typical of the holders of claims or interests in the case, that would en- able such a hypothetical investor of the rel- evant class to make an informed judgment about the plan, but adequate information need not include such information about any other possible or proposed plan and in determining whether a disclosure statement provides ade- quate information, the court shall consider the complexity of the case, the benefit of addi- tional information to creditors and other par- ties in interest, and the cost of providing addi- tional information; and (2) ‘‘investor typical of holders of claims or interests of the relevant class’’ means investor having— (A) a claim or interest of the relevant class; (B) such a relationship with the debtor as the holders of other claims or interests of such class generally have; and (C) such ability to obtain such information from sources other than the disclosure re- quired by this section as holders of claims or interests in such class generally have. (b) An acceptance or rejection of a plan may not be solicited after the commencement of the case under this title from a holder of a claim or interest with respect to such claim or interest, unless, at the time of or before such solicitation, there is transmitted to such holder the plan or a summary of the plan, and a written disclosure statement approved, after notice and a hearing, by the court as containing adequate informa- tion. The court may approve a disclosure state- ment without a valuation of the debtor or an ap- praisal of the debtor’s assets. (c) The same disclosure statement shall be transmitted to each holder of a claim or interest of a particular class, but there may be trans- mitted different disclosure statements, differing in amount, detail, or kind of information, as be- tween classes. (d) Whether a disclosure statement required under subsection (b) of this section contains adequate information is not governed by any otherwise applicable nonbankruptcy law, rule, or regulation, but an agency or official whose duty is to administer or enforce such a law, rule, or regulation may be heard on the issue of whether a disclosure statement contains ade- quate information. Such an agency or official may not appeal from, or otherwise seek review of, an order approving a disclosure statement. (e) A person that solicits acceptance or rejec- tion of a plan, in good faith and in compliance with the applicable provisions of this title, or that participates, in good faith and in compli- ance with the applicable provisions of this title, in the offer, issuance, sale, or purchase of a se- curity, offered or sold under the plan, of the debtor, of an affiliate participating in a joint plan with the debtor, or of a newly organized successor to the debtor under the plan, is not liable, on account of such solicitation or partici- pation, for violation of any applicable law, rule, or regulation governing solicitation of accept- ance or rejection of a plan or the offer, issuance, sale, or purchase of securities. (f) Notwithstanding subsection (b), in a small business case— (1) the court may determine that the plan itself provides adequate information and that a separate disclosure statement is not nec- essary; (2) the court may approve a disclosure state- ment submitted on standard forms approved by the court or adopted under section 2075 of title 28; and (3)(A) the court may conditionally approve a disclosure statement subject to final approval after notice and a hearing; (B) acceptances and rejections of a plan may be solicited based on a conditionally approved disclosure statement if the debtor provides adequate information to each holder of a claim or interest that is solicited, but a condi- tionally approved disclosure statement shall be mailed not later than 25 days before the date of the hearing on confirmation of the plan; and (C) the hearing on the disclosure statement may be combined with the hearing on con- firmation of a plan. (g) Notwithstanding subsection (b), an accept- ance or rejection of the plan may be solicited from a holder of a claim or interest if such solic- itation complies with applicable nonbankruptcy law and if such holder was solicited before the commencement of the case in a manner com- plying with applicable nonbankruptcy law. (Pub. L. 95–598, Nov. 6, 1978, 92 Stat. 2633; Pub. L. 98–353, title III, § 509, July 10, 1984, 98 Stat. 385; Pub. L. 103–394, title II, § 217(e), Oct. 22, 1994, 108 Stat. 4127; Pub. L. 109–8, title IV, §§ 408, 431, title VII, § 717, Apr. 20, 2005, 119 Stat. 106, 109, 131.) HISTORICAL AND REVISION NOTES LEGISLATIVE STATEMENTS Section 1125 of the House amendment is derived from section 1125 of the House bill and Senate amendment except with respect to section 1125(f) of the Senate amendment. It will not be necessary for the court to consider the report of the examiner prior to approval of a disclosure statement. The investigation of the exam- iner is to proceed on an independent basis from the pro- cedure of the reorganization under chapter 11. In order to ensure that the examiner’s report will be expeditious and fair, the examiner is precluded from serving as a trustee in the case or from representing a trustee if a trustee is appointed, whether the case remains in chap- ter 11 or is converted to chapter 7 or 13. SENATE REPORT NO. 95–989 This section extends disclosure requirements in con- nection with solicitations to all cases under chapter 11. Page 261 TITLE 11—BANKRUPTCY § 1125 Heretofore this subject was dealt with by the Bank- ruptcy Act [former title 11] mainly in the special con- texts of railroad reorganizations and chapter X [chap- ter 10 of former title 11] cases. Subsection (a) defines (1) the subject matter of disclo- sure as ‘‘adequate information’’ and relates the stand- ard of adequacy to an (2) ‘‘investor typical of holders or claims or interests of the relevant class.’’ ‘‘Investor’’ is used broadly here, for it will almost always include a trade creditor or other creditors who originally had no investment intent or interest. It refers to the invest- ment-type decision by those called upon to accept a plan to modify their claims or interests, which typi- cally will involve acceptance of new securities or of a cash payment in lieu thereof. Both the kind and form of information are left essen- tially to the judicial discretion of the court, guided by the specification in subparagraph (a)(1) that it be of a kind and in sufficient detail that a reasonable and typ- ical investor can make an informed judgment about the plan. The information required will necessarily be gov- erned by the circumstances of the case. Reporting and audit standards devised for solvent and continuing businesses do not necessarily fit a debtor in reorganization. Subsection (a)(1) expressly incorporates consideration of the nature and history of the debtor and the condition of its books and records into the de- termination of what is reasonably practicable to sup- ply. These factors are particularly pertinent to histor- ical data and to discontinued operations of no future relevance. A plan is necessarily predicated on knowledge of the assets and liabilities being dealt with and on factually supported expectations as to the future course of the business sufficient to meet the feasibility standard in section 1130(a)(11) of this title. It may thus be nec- essary to provide estimates or judgments for that pur- pose. Yet it remains practicable to describe, in such de- tail as may be relevant and needed, the basis for the plan and the data on which supporters of the plan rely. Subsection (b) establishes the jurisdiction of the court over this subject by prohibiting solicitation of acceptance or rejection of a plan after the commence- ment of the case, unless the person solicited receives, before or at the time of the solicitation, a written dis- closure statement approved by the court, after notice and hearing, as containing adequate information. As under present law, determinations of value, by ap- praisal or otherwise, are not required if not needed to accomplish the purpose specified in subsection (a)(1). Subsection (c) requires that the same disclosure statement be transmitted to each member of a class. It recognizes that the information needed for an informed judgment about the plan may differ among classes. A class whose rights under the plan center on a particular fund or asset would have no use for an extensive de- scription of other matters that could not affect them. Subsection (d) relieves the court of the need to follow any otherwise applicable Federal or state law in deter- mining the adequacy of the information contained in the disclosure statement submitted for its approval. It authorizes an agency or official, Federal or state, charged with administering cognate laws so preempted to advise the court on the adequacy of proposed disclo- sure statement. But they are not authorized to appeal the court’s decision. Solicitations with respect to a plan do not involve just mere requests for opinions. Acceptance of the plan vitally affects creditors and shareholders, and most fre- quently the solicitation involves an offering of securi- ties in exchange for claims or interests. The present bankruptcy statute [former title 11] has exempted such offerings under each of its chapters from the registra- tion and disclosure requirements of the Securities Act of 1933 [15 U.S.C. 77a et seq.], an exemption also contin- ued by section 1145(a)(2) of this title. The extension of the disclosure requirements to all chapter 11 cases jus- tifies the coordinate extension of these exemptions. By the same token, no valid purpose is served not to ex- empt from the requirements of similar state laws in a matter under the exclusive jurisdiction of the Federal bankruptcy laws. Subsection (e) exonerates any person who, in good faith and in compliance with this title, solicits or par- ticipates in the offer, issuance, sale or purchase, under the plan, of a security from any liability, on account of such solicitation or participation, for violation of any law, rule, or regulation governing the offer, issuance, sale, or purchase of securities. This exoneration is co- ordinate with the exemption from Federal or State reg- istration or licensing requirements provided by section 1145 of this title. In the nonpublic case, the court, when approving the disclosure statement, has before it the texts of the plan, a proposed disclosure document, and such other information the plan proponents and other interested parties may present at the hearing. In the final anal- ysis the exoneration which subsection (e) grants must depend on the good faith of the plan proponents and of those who participate in the preparation of the disclo- sure statement and in the solicitation. Subsection (e) does not affect civil or criminal liability for defects and inadequacies that are beyond the limits of the exonera- tion that good faith provides. Section 1125 applies to public companies as well, sub- ject to the qualifications of subsection (f). In case of a public company no solicitations of acceptance is per- mitted unless authorized by the court upon or after ap- proval of the plan pursuant to section 1128(c). In addi- tion to the documents specified in subsection (b), sub- section (f) requires transmission of the opinion and order of the court approving the plan and, if filed, the advisory report of the Securities and Exchange Com- mission or a summary thereof prepared by the Commis- sion. HOUSE REPORT NO. 95–595 This section is new. It is the heart of the consolida- tion of the various reorganization chapters found in current law. It requires disclosure before solicitation of acceptances of a plan or reorganization. Subsection (a) contains two definitions. First, ‘‘ade- quate information’’ is defined to mean information of a kind, and insufficient detail, as far as is reasonably practical in light of the nature and history of the debt- or and the condition of the debtor’s books and records, that would enable a hypothetical reasonable investor typical of holders of claims or interests of the relevant class to make an informed judgment about the plan. Second, ‘‘investor typical of holders of claims or inter- ests of the relevant class’’ is defined to mean an inves- tor having a claim or interest of the relevant class, having such a relationship with the debtor as the hold- ers of other claims or interests of the relevant class have, and having such ability to obtain information from sources other than the disclosure statement as holders of claims or interests of the relevant class have, and having such ability to obtain information from sources other than the disclosure statement as holders of claims or interests of the relevant class have. That is, the hypothetical investor against which the disclosure is measured must not be an insider if other members of the class are not insiders, and so on. In other words, the adequacy of disclosure is measured against the typical investor, not an extraordinary one. The Supreme Court’s rulemaking power will not ex- tend to rulemaking that will prescribe what con- stitutes adequate information. That standard is a sub- stantive standard. Precisely what constitutes adequate information in any particular instance will develop on a case-by-case basis. Courts will take a practical ap- proach as to what is necessary under the circumstances of each case, such as the cost of preparation of the statements, the need for relative speed in solicitation and confirmation, and, of course, the need for investor protection. There will be a balancing of interests in each case. In reorganization cases, there is frequently great uncertainty. Therefore the need for flexibility is greatest. Subsection (b) is the operative subsection. It pro- hibits solicitation of acceptances or rejections of a plan Page 262 TITLE 11—BANKRUPTCY § 1126 after the commencement of the case unless, at the time of the solicitation or before, there is transmitted to the solicitee the plan or a summary of the plan, and a writ- ten disclosure statement approved by the court as con- taining adequate information. The subsection permits approval of the statement without the necessity of a valuation of the debtor or an appraisal of the debtor’s assets. However, in some cases, a valuation or appraisal will be necessary to develop adequate information. The court will be able to determine what is necessary in light of the facts and circumstances of each particular case. Subsection (c) requires that the same disclosure statement go to all members of a particular class, but permits different disclosure to different classes. Subsection (d) excepts the disclosure statements from the requirements of the securities laws (such as section 14 of the 1934 Act [15 U.S.C. 78n] and section 5 of the 1933 Act [15 U.S.C. 77e]), and from similar State securities laws (blue sky laws, for example). The sub- section permits an agency or official whose duty is to administer or enforce such laws (such as the Securities and Exchange Commission or State Corporation Com- missioners) to appear and be heard on the issue of whether a disclosure statement contains adequate in- formation, but the agencies and officials are not grant- ed the right of appeal from an adverse determination in any capacity. They may join in an appeal by a true party in interest, however. Subsection (e) is a safe harbor provision, and is nec- essary to make the exemption provided by subsection (d) effective. Without it, a creditor that solicited an ac- ceptance or rejection in reliance on the court’s ap- proval of a disclosure statement would be potentially liable under antifraud sections designed to enforce the very sections of the securities laws from which sub- section (d) excuses compliance. The subsection protects only persons that solicit in good faith and in compli- ance with the applicable provisions of the reorganiza- tion chapter. It provides protection from legal liability as well as from equitable liability based on an injunc- tive action by the SEC or other agency or official. Editorial Notes AMENDMENTS 2005—Subsec. (a)(1). Pub. L. 109–8, § 717, inserted ‘‘in- cluding a discussion of the potential material Federal tax consequences of the plan to the debtor, any suc- cessor to the debtor, and a hypothetical investor typ- ical of the holders of claims or interests in the case,’’ after ‘‘records,’’ and substituted ‘‘such a hypothetical investor’’ for ‘‘a hypothetical reasonable investor typ- ical of holders of claims or interests’’. Pub. L. 109–8, § 431(1), inserted before semicolon ‘‘and in determining whether a disclosure statement pro- vides adequate information, the court shall consider the complexity of the case, the benefit of additional in- formation to creditors and other parties in interest, and the cost of providing additional information’’. Subsec. (f). Pub. L. 109–8, § 431(2), added subsec. (f) and struck out former subsec. (f) which read as follows: ‘‘Notwithstanding subsection (b), in a case in which the debtor has elected under section 1121(e) to be consid- ered a small business— ‘‘(1) the court may conditionally approve a disclo- sure statement subject to final approval after notice and a hearing; ‘‘(2) acceptances and rejections of a plan may be so- licited based on a conditionally approved disclosure statement as long as the debtor provides adequate in- formation to each holder of a claim or interest that is solicited, but a conditionally approved disclosure statement shall be mailed at least 10 days prior to the date of the hearing on confirmation of the plan; and ‘‘(3) a hearing on the disclosure statement may be combined with a hearing on confirmation of a plan.’’ Subsec. (g). Pub. L. 109–8, § 408, added subsec. (g). 1994—Subsec. (f). Pub. L. 103–394 added subsec. (f). 1984—Subsec. (a)(1). Pub. L. 98–353, § 509(a)(1), inserted ‘‘, but adequate information need not include such in- formation about any other possible or proposed plan’’. Subsec. (a)(2)(B). Pub. L. 98–353, § 509(a)(2), inserted ‘‘the’’ after ‘‘with’’. Subsec. (a)(2)(C). Pub. L. 98–353, § 509(a)(3), inserted ‘‘of’’ after ‘‘holders’’. Subsec. (d). Pub. L. 98–353, § 509(b), inserted ‘‘required under subsection (b) of this section’’ and ‘‘, or other- wise seek review of,’’. Subsec. (e). Pub. L. 98–353, § 509(c), inserted ‘‘accept- ance or rejection of a plan’’ after ‘‘solicits’’, and ‘‘solic- itation of acceptance or rejection of a plan or’’ after ‘‘governing’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2005 AMENDMENT Amendment by Pub. L. 109–8 effective 180 days after Apr. 20, 2005, and not applicable with respect to cases commenced under this title before such effective date, except as otherwise provided, see section 1501 of Pub. L. 109–8, set out as a note under section 101 of this title. EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–394 effective Oct. 22, 1994, and not applicable with respect to cases commenced under this title before Oct. 22, 1994, see section 702 of Pub. L. 103–394, set out as a note under section 101 of this title. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–353 effective with respect to cases filed 90 days after July 10, 1984, see section 552(a) of Pub. L. 98–353, set out as a note under section 101 of this title. § 1126. Acceptance of plan (a) The holder of a claim or interest allowed under section 502 of this title may accept or re- ject a plan. If the United States is a creditor or equity security holder, the Secretary of the Treasury may accept or reject the plan on be- half of the United States. (b) For the purposes of subsections (c) and (d) of this section, a holder of a claim or interest that has accepted or rejected the plan before the commencement of the case under this title is deemed to have accepted or rejected such plan, as the case may be, if— (1) the solicitation of such acceptance or re- jection was in compliance with any applicable nonbankruptcy law, rule, or regulation gov- erning the adequacy of disclosure in connec- tion with such solicitation; or (2) if there is not any such law, rule, or regu- lation, such acceptance or rejection was solic- ited after disclosure to such holder of ade- quate information, as defined in section 1125(a) of this title. (c) A class of claims has accepted a plan if such plan has been accepted by creditors, other than any entity designated under subsection (e) of this section, that hold at least two-thirds in amount and more than one-half in number of the allowed claims of such class held by credi- tors, other than any entity designated under subsection (e) of this section, that have accepted or rejected such plan. (d) A class of interests has accepted a plan if such plan has been accepted by holders of such interests, other than any entity designated