On Second Thought: EFH Court's Extraordinary Move

By Steven Wilamowsky and Sara Ghadiri (October 18, 2017, 3:42 PM EDT) -- In an extraordinary move, on Oct. 3, 2017, the U.S. Bankruptcy Court for the District of Delaware granted a motion to reconsider a decision it made over a year ago in the bankruptcy of Energy Future Holdings Corp. and its co-debtors ("debtors") and in doing so disallowed a $275 million breakup fee to a prospective asset purchaser that it had previously approved.[1] The court found that it had made errors of both fact and law requiring it to overturn its previous decision. The decision is consequential because it effectively denied promised compensation to a prospective buyer that had invested "tens of millions of dollars" in legal fees and presumably more than that in opportunity costs to pursue the transaction, and because it underscores the importance of full and forthright practical (rather than merely technical) disclosure to a court and other parties by parties in interest hoping to rely on its rulings....

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