City of Detroit Withstands Another Challenge to Its Confirmed Bankruptcy Plan

Detroit (photo from Wikipedia)

By: Donald L. Swanson

Who knew that the City of Detroit’s confirmed bankruptcy plan is still in legal jeopardy?

Well . . . it is.  But the jeopardy today is much-less than it was two days ago.

Several Detroit pensioners had challenged the City of Detroit’s plan confirmation order because the plan reduced their benefits.  The U.S. District Court in Detroit had dismissed their challenge, and the pensioners appealed.

On October 3, 2016, a three-judge panel of the U.S. Sixth Circuit Court of Appeals issues its decision affirming the District Court’s dismissal.

But get this: the decision of the three-judge panel is not unanimous.  There is a dissent!

How can this be?


Detroit’s Chapter 9 plan confirmation occurs on November 7, 2014, following extensive and successful mediation efforts.

Thereafter, huge sums of money change hands to effectuate the terms of the plan.  And many, many people take action in reliance on the confirmed plan.  All such actions are irreversible.  The effects of the confirmation order cannot be undone.

Yet . . . these pensioners are still trying to undo what happened – nearly two years later.

–The Ruling

But it’s precisely because of the irreversible realities that the two-judge majority from the Sixth Circuit upholds the dismissal of these challenges.

The technical legal theory the two judges utilize is “equitable mootness.”  This theory allows an appealed-from plan-confirmation order to stand, without a ruling on the merits of the appeal, if,

(i) a stay has not been obtained,

(ii) the plan is substantially consummated, and

(iii) the requested relief would “significantly and irrevocably disrupt the implementation of the plan” or “disproportionately harm the reliance interests of other parties.”

The Sixth Circuit majority applies this three-part test and affirms dismissal, explaining:

–“In this case, all three factors favor the application of equitable mootness.”

–“This is not a close call. In fact, the doctrine of equitable mootness was created and intended for exactly this type of scenario, to ‘prevent a court from unscrambling complex bankruptcy reorganizations’ after ‘the plan has become extremely difficult to retract.’”

The pensioners argue that the “equitable mootness” theory, if it exists at all, applies only to businesses in Chapter 11 cases and not to cities in Chapter 9 cases.  The two-judge majority disagrees, explaining:

–“Equitable mootness is the law of the Sixth Circuit, . . . and we continue to apply it.”

–“We conclude that equitable mootness applies to Chapter 9 cases just as it applies to Chapter 11. In fact, considering the particular facts of this case, equitable mootness likely applies ‘with greater force to the City’s Chapter 9 Plan, which affects thousands of creditors and residents.’”

The one-judge dissent disagrees on all these points.

–Still in Jeopardy.

So . . . the City of Detroit’s plan confirmation order survives another challenge.  But even this survival is not final:

–These pensioners will, undoubtedly, seek a rehearing and a ruling from the entire panel of Sixth Circuit judges, followed by a Petition for a Writ of Certiorari to the United States Supreme Court if such efforts are unsuccessful.


It’s a little hard to have a lot of sympathy for these litigating pensioners.

Every creditor in the City of Detroit bankruptcy experienced considerable loss.

But great efforts were made to minimize losses for pensioners: the entire “Grand Bargain,” for example, occurred to prefer pensioners, dramatically, over all other creditors.

–Footnote 2 of the Sixth Circuit decision says the pensioners received a “4.5% reduction in benefits.”  That’s far, far better than any other group of creditors.

The Sixth Circuit majority finds that a contrary ruling — in favor of these pensioners – would:

–“necessarily rescind the Grand Bargain, its $816 million in outside funding, and the series of other settlements and agreements contingent” upon settlements with pensioners,

–“thereby unravelling the entire Plan and adversely affecting countless third parties, including among others, the entire City population.”


Here’s hoping, and expecting, that this Sixth Circuit ruling holds-up under further judicial scrutiny.



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