Chapter 11 is usually the choice of corporations.
Any debtor who can file a Chapter 7 liquidation is also eligible to file a Chapter 11 reorganization plan. However, most reorganizations are undertaken by corporations rather than individual debtors. Like Chapter 7 liquidations, Chapter 11 cases may be either voluntary or involuntary. In other words, the debtor may voluntarily initiate a Chapter 11 proceeding, or the debtor's creditors can force the debtor into a reorganization.
When a business seeks protection under Chapter 11 reorganization, the business does not ordinarily contemplate liquidation, although Chapter 11 can now be used for orderly liquidations over a period of years if the business has no prospect of being run profitably. In a Chapter 11 reorganization, a business' management typically stays in place as a debtor-in-possession. In other words, a trustee does not normally take title to business assets in a Chapter 11 reorganization. Creditors can petition the court for the appointment of a trustee for their protection if they can show that appointing a trustee would be in the best interest of the estate or if there has been gross mismanagement of the business by present management.
A Chapter 11 reorganization pursuant to a plan filed with the bankruptcy court normally either contemplates the rehabilitation of a business over a period of time or the orderly liquidation of the business. Typically, the business will discharge a portion of its debt in the proceeding. Creditor's debts are sometimes transformed into stock, an equity ownership interest.
Businesses typically seek protection under a Chapter 11 plan when they are faced with temporary financial reverses or cash shortages. Perhaps, the best known Chapter 11 filing was by Manville Corporation when they were faced with massive claims over asbestos liability, but the corporation was financially solvent. Chapter 11 proceedings, as do the bankruptcies, provide temporary relief from collection activities and lawsuits.
After the bankruptcy petition is filed and the court enters an order of relief, a creditors' committee will be formed from the debtor's unsecured creditors. Typically, the initial creditors' committee will work with the debtor and the court trustee to formulate the reorganization plan. In a larger Chapter 11 proceeding, there will typically be more than one creditors' committee because different creditors will have differing interests.
After the order for relief, the debtor has 120 days to formulate and file a plan of reorganization with the bankruptcy court. If the debtor fails to submit a plan during the 120 day period, or if creditors fail to consent to the debtor's plan during the first 180 days, any of the creditors can submit a plan. The court is sometimes faced with conflicting plans.
A plan of reorganization must designate classes and interests under the plan and what these classes of creditors will receive under the plan. For example, secured creditors might be one class, unsecured trade creditors a second, and employees a third. The plan must be fair and equitable and must provide an adequate means for its own execution. Generally, all identified classes must accept the plan of reorganization by a majority vote, which also comprises at least two thirds of the total claims within each class. Finally, the bankruptcy court must approve the proposed reorganization plan after determining that it is in the best interests of the creditors.
Although each class of creditors must normally approve the reorganization plan by majority vote, the bankruptcy court can still approve a plan over the objections of one or more classes of creditors. This power is called the "cram down" power.
As in Chapter 7 liquidations, the automatic stay prevents creditors from initiating or continuing either collection actions or litigation without court approval during the pendency of the bankruptcy case. Litigation in progress must come to a halt. This advantage has led some corporations to opt for Chapter 11 protection despite the fact that they were in no danger of insolvency.
Although at one time executory labor contracts could be avoided by the debtor in possession, Congress amended the bankruptcy code to provide that a debtor in possession cannot generally avoid collectively bargained union labor agreements.
The bankruptcy court has the power to dismiss a Chapter 11 case when the debtor has not complied with the reorganization plan or when it is highly unlikely that the plan can be carried out as originally intended.