Post-Confirmation Issues: How to Fix What You Did Not Fix at Confirmation

By: Joseph J. Wielebinski (Co-presenter)
Presented at the Advanced Business Bankruptcy Course, State Bar of Texas
May 22-23, 2003

I. INTRODUCTION
In any chapter 11 bankruptcy case, the process by which a plan of reorganization or liquidation is proposed, negotiated and ultimately confirmed requires great attention to detail regarding a multitude of issues. This is especially true in the large chapter 11 “mega cases” where there are a significant number of classes and even sub-classes of creditors, several business entities, alternative treatments of claims and a variety of other business and legal issues. Therefore, it is not surprising that after plan confirmation, a number of issues or problems may arise that require some change to or modification of the plan.

In many cases, problems or defects in a confirmed plan can be remedied by utilizing the applicable provisions of the Bankruptcy Code to implement appropriate modifications to the plan. However, the ability to implement necessary modifications and the bankruptcy court’s jurisdiction to do so is not without limits. Therefore, understanding and being able to work within these limitations is critical to any experienced practitioner.

A corollary to the remedial actions in the post-confirmation environment is the ability to enforce a plan that has not or cannot be consummated or that has other problems that are beyond the plan proponent’s ability to address through modifications to the plan. Similarly, a issue of significant importance that has increasingly arisen in the post-confirmation context is the preservation and enforcement of claims reserved under a confirmed plan and the impact of res judicata and judicial and equitable estoppel that could limit these rights.

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