Robert Drain has been a federal judge for 20 years. And even though he’s just 61 and everyone’s favorite bankruptcy referee, he’s seen quite enough, and will be retiring from the bench on June 30. And what he’d really like as a parting gift is for the case that has occupied the better part of his last four years to finally, mercifully end.
On April 6, Judge Drain appointed three mediators to help settle the litigation brought by Sears Holdings against Eddie Lampert, ESL, and others…. The three mediators include Judge Chapman, retired Judge Peck, and special mediator Jed Melnick. All are very highly respected. The discussions start within three days and the "Mediation shall conclude no later than May 23, 2022, unless expressly authorized by further order of this Court on notice to the Mediation Parties".
That’s right: Having previously thrown up his hands and told the rotting corpse of Sears’ creditors to see if they could sue their way to some kind of payout from the mercurial and slippery Eddie Lampert, now he’s inviting (well, ordering) them to come to the table and finally hash this goddamned thing out. And you know what? Lampert’s intransigence to date notwithstanding, he might well just do it.
I am not sure if Eddie Lampert would risk that Sears Holdings would just file a motion to withdraw their Ch.11 without having an effective reorganization plan because he litigated against having the plan being declared effective without a [second lien] final settlement. (Yes, this is an option if they are unable to have their Ch.11 reorganization plan become effective.) He needs the plan to become effective in order for him/Transform[co, his company that bought most of Sears’ remaining stores] to have future use of the very large [net operating loss carryovers]. Therefore, the risk reward favors letting the plan become effective with or without a 2lien settlement, in my opinion. He might gain something via the 2lien appeal, but that is a token amount compared to the value of the NOLs.
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