- Equitable Subordination and Recharacterization: Lessons From Recent Bankruptcy Litigation
Equitable subordination and recharacterization claims are asserted against secured creditors by junior or unsecured creditors to obtain recovery from highly leveraged debtors. When addressing liquidity of their portfolio companies, PE sponsors are vulnerable to attacks on their claims.
Recharacterization claims usually involve insiders like stockholders, directors and officers. However, the doctrine is not limited to corporate insiders, and courts will scrutinize the debt instrument instead of the creditor’s status.
Both doctrines have been heavily litigated with many key rulings in 2014 from the Delaware and New York bankruptcy courts, including rulings in the LightSquared, Scott Cable, Atlantic Business Group, and Optima Energy proceedings.
Listen as our authoritative panel of bankruptcy attorneys discusses the looming threats of equitable subordination and recharacterization in bankruptcy, and how lenders, creditors and PE sponsors can minimize exposure and protect their claims.