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The United States Court of Appeals for the Second Circuit recently handed down a ground-breaking decision in the DBSD North America bankruptcy case.1 The DISH Network decision should reinforce a chapter 11 debtor’s primary responsibility of maximizing the value of its business and, absent a 363 sale, refocus negotiations on a consensual plan. Most importantly, DISH Network dealt a powerful blow to the controversial practice of “gifting” by which a high priority (often secured) class of creditors bypasses an intermediate class by making a “gift” to a lower priority (often equity) class. In addition, the court affirmed the designation and consequent disqualification of votes cast by DISH Network Corp., a DBSD competitor that acquired debt after the plan was filed with a view to using its vote to block the plan and promoting its own acquisition intentions. Not surprisingly, the ultimate impact of this decision was the submission by DISH of a substantially enhanced offer for the debtors’ business.

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