미국 파산법원과 실질적 합병이론 - 리만 브러더스 (Lehman Brothers) 파산 소송의 예 -

Abstract

One of the most contentious issues in Lehman Brothers' chapter 11 cases was whether to substantively consolidate the debtors that have held themselves out to public as one Lehman group and have engaged in complex intercompany transactions with less than perfect documentation. This issue became the forefront in the plan confirmation battle when an ad hoc group of LBHI creditors filed a plan of reorganization asserting substantive consolidation. Soon, the Lehman debtors filed an amended plan recognizing the risk of substantive consolidation and proposing a compromise, followed by another plan proposed by certain creditors of Lehman's operating subsidiaries based on strict corporate separateness. Substantive consolidation is an extreme remedy available in U.S. bankruptcy proceedings. It is used to combine assets and liabilities of multiple debtors to create a common pool of assets and liabilities in order to protect creditors from injustice that would otherwise result from enforcing strict corporate separateness, due to either the debtors' misrepresentation in their business dealings or extreme costs and delay to separate the debtors' assets and liabilities. The doctrine is based on bankruptcy court's equitable power under section 105 of the Bankruptcy Code, and has been developed through numerous cases, including Union Savings Bank v. Augie/Restivo Baking Co. (In re Augie/Restivo Baking Co.), 860 F.2d 515 (2d Cir. 1988) and In re Owens Corning, 419 F.3d 195 (3d Cir. 2005). This paper reviews the two seminal cases, and summarizes how the arguments for and against substantive consolidation have played out in Lehman's chapter 11 plan process. Then, it suggests various issues that investors should consider from bankruptcy perspective when making their investment decisions and dealing with U.S. companies.