Lawyer Commentary JD Supra United States Not a Time for Second Thoughts: EDNY Holds Settlement Approval Stage Is No Escape Route

Not a Time for Second Thoughts: EDNY Holds Settlement Approval Stage Is No Escape Route

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U.S. Bankruptcy Rule 9019 provides that on a motion brought by a trustee (and thus a chapter 11 debtor-in-possession as well) the court may approve a settlement. The prevailing view is that due to the court’s approval requirement, pre-court approval settlement agreements are enforceable by the debtor but not against the debtor. The District Court for the Eastern District of New York recently disagreed. It held that the statutory approval requirement is not an opportunity for the debtor to repudiate the settlement. Rather, the court held that settlements requiring court approval are binding on all parties to the extent allowable under state law until the court considers and rejects the settlement. Liberty Towers Realty, LLC v. Richmond Liberty, LLC, 569 B.R. 534 (E.D.N.Y. 2017).

In the case, chapter 11 debtors reached a global settlement agreement with creditors who foreclosed on their real property (the “Settlement Agreement”). The Settlement Agreement provided that the creditors were allowed to sell the property to a third party, and the creditors entered into a contract of sale with a third-party purchaser. The third-party purchaser, in turn, as it was required to do pursuant to the terms of the Settlement Agreement, moved for bankruptcy court approval pursuant to Bankruptcy Rule 9019.

At a hearing on the third-party purchaser’s motion, however, the debtors withdrew their support for the Settlement Agreement due to a purportedly better post-settlement offer. The Bankruptcy Court nonetheless granted the third-party purchaser’s motion and approved the Settlement Agreement. The debtors appealed.

On appeal, the debtors argued that they were entitled to rescind...

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