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Bankruptcy Court Relies on Market Approach to Determine Prepetition Solvency
September 25, 2007 Full PDF
In a closely watched case against Motorola, Inc. arising out of the Iridium chapter 11 case, Judge James M. Peck of the Bankruptcy Court for the Southern District of New York has adopted a market approach to determining prepetition solvency, finding "insufficient cause to set aside the verdict of solvency and capital adequacy already given to Iridium by the public markets." In his 111-page opinion Judge Peck agreed with the Third Circuit's approach in VFB LLC v. Campbell Soup Co. which, in Judge Peck's words, "validates the use of market data for purposes of valuing a public company for fraudulent conveyance purposes and makes clear that the public markets constitute a better guide to fair value than the opinion of hired litigation experts whose valuation work is performed after the fact and from an advocate's point of view." After considering the testimony of 52 witnesses, including 7 experts, and admitting into evidence 866 exhibits during a 50-day trial, Judge Peck found that the plaintiff creditors committee had not sustained its burden of proving that Iridium was insolvent or had unreasonably small capital during the 4-year prepetition period at issue.