In a matter of apparent first impression, in Spicer v. Laguna Madre Oil & Gas II LLC ( In re Texas Wyoming Drilling Inc. ), the 5th U.S. Circuit Court of Appeals held in an opinion dated July 21 that it was permissible to consider both a plan of reorganization and its accompanying disclosure statement when determining whether a debtor had sufficiently preserved certain causes of action pursuant to § 1123 of the Bankruptcy Code.
In Spicer , a dispute arose concerning whether Texas Wyoming Drilling Inc. (the debtor) had standing to prosecute certain claims against Laguna Madre Oil & Gas II LLC. Following approval of the debtor’s disclosure statement and a few months after confirmation of the debtor’s plan, the debtor commenced suits against various former shareholders, including Laguna, seeking to avoid and recover as constructively fraudulent transfers certain dividend payments pursuant to §§ 544, 548, 550 of the Bankruptcy Code, and to various provisions of the Texas Business and Commerce Code (the avoidance actions). In response, Laguna filed a motion for summary judgment arguing that the debtor, through its plan, had failed to preserve the avoidance actions pursuant to § 1123(b)(3)(B) of the Bankruptcy Code, which provides that “a plan may … provide for … the retention and enforcement by the debtor, by the trustee, or by a representative of the estate appointed for such purpose, of any such claim or interest.”
