In Re Chrysler LLC

576 F.3d 108 (2009)


Chrysler LLC (P) filed a pre-packaged bankruptcy petition under Chapter 11. Months prior, P experienced deepening losses, received billions in bailout funds from the Federal Government, searched for a merger partner, unsuccessfully sought additional government bailout funds for a stand-alone restructuring, and ultimately settled on an asset-sale transaction pursuant to §363 which was approved by the Sale Order. P's operating assets would be transferred to New Chrysler in exchange for New Chrysler's assumption of certain liabilities and $2 billion in cash. Fiat S.p.A agreed to provide New Chrysler with certain fuel-efficient vehicle platforms, access to its worldwide distribution system, and new management that is experienced in turning around a failing auto company. Financing for the sale transaction--$6 billion in senior secured financing, and debtor-in-possession financing for 60 days in the amount of $ 4.96 billion--would come from the United States Treasury and from Export Development Canada. Ownership was to be distributed by membership interests, 55% of which go to an employee benefit entity created by the United Auto Workers union, 8% to the United States Treasury and 2% to Export Development Canada. Fiat, for its contributions, would immediately own 20% of the equity with rights to acquire more (up to 51%), contingent on payment in full of the debts owed to the United States Treasury and Export Development Canada. No other bids were forthcoming. The court held hearings, and with extensive findings of fact and conclusions of law, the bankruptcy court approved the sale. After more court wrangling and appeals, the sale was approved. Ds challenged the sale; the sale of all the assets so closely approximated a final plan of reorganization that it constitutes an impermissible 'sub rosa plan,' and therefore cannot be accomplished under § 363(b). As D sees the net result of the sale, the new company will be called 'Chrysler.' . . . Its employees, including most management, will be retained. . . . It will manufacture and sell Chrysler and Dodge cars and minivans, Jeeps and Dodge Trucks. . . . The real substance of the transaction is the underlying reorganization it implements.' This appeal resulted.