# In re U.S. Fidelis, Inc.

> United States Bankruptcy Court, E.D. Missouri · August 28, 2012 · 481 B.R. 503

URL: https://www.frixlaw.com/law-library/cases/8495270

## Case

- **Full name:** In re U.S. FIDELIS, INC., Debtor
- **Court:** United States Bankruptcy Court, E.D. Missouri
- **Decided:** August 28, 2012
- **Citations:** 481 B.R. 503; 2012 Bankr. LEXIS 5308; 2012 WL 5418926
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Rendlen
- **Judges:** Rendlen
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8495270

## How later opinions describe it (automated extraction)

- finding that it would be a “truly unfair result” if an objection to releases in plan was sustained because plan would fall apart, no other plan would be presented, and the case would be dismissed or converted to chapter 7
- finding fifth Master Mortgage factor satisfied where there was a return to creditors
- finding Master Mortgage requirements fulfilled

## Opinion text

ORDER OVERRULING THE OBJECTION TO CONFIRMATION OF THE PLAN AND MEMORANDUM OPINION IN SUPPORT OF CONFIRMATION
CHARLES E. RENDLEN, Bankruptcy Judge.
On June 5, 2012, the Official Committee of Unsecured Creditors (the “UCC”) filed a First Amended Plan of Liquidation (the “First Amended Plan”) [Docket No. 1097] and a First Amended Disclosure Statement [Docket No. 1098]. On July 3, 2012, the UCC filed a supplement to the First Amended Plan [Docket No. 1129], On July 9, 2012, three creditors, including Jackie L. High (collectively, the “High Objectors”), filed a joint objection to confirmation of the First Amended Plan (the “High Objection”) [Docket No. 1135], On July 10, 2012, the UCC filed an additional supplement to the First Amended Plan (together with the July 3 supplement, the “Plan Supplements”) [Docket No. 1144], On July 13, 2012, a modified version of the First Amended Plan (the “First Amended Plan, as Modified”) [Docket No. 1167] was filed with leave of the Court.
On July 16, 2012, the hearing on confirmation of the First Amended Plan, as Modified was held. The High Objectors did not appear at the hearing. Uncontested evidence was admitted in support of confirmation, including declarations and affidavits (including those at Docket Nos. 1148, 1149, 1153, 1157, 1161, and 1161). No testimony or other evidence controverting these declarations and affidavits was offered, and the Court FINDS the representations therein to be reliable and persuasive, and adopts them as findings of fact. Also at the hearing, the First Amended Plan, as Modified was further modified to include a carve-out in favor of the High Objectors (the “Carve-Out”). This orally made Carve-Out was reduced to writing following the hearing [Docket # 1182], As a result, the confirmed plan (the “Plan”) consists of the First Amended Plan, as Modified, the Plan Supplements, and the Carve-Out.
Consistent with its bench ruling, the Court now makes the following findings of facts and conclusions of law in support of confirmation of the Plan, and ORDERS that the High Objection be OVERRULED as set forth herein. 1
I. FACTS
The Formation, Operation, and Demise of the Debtor. In 2003, the Debtor was formed by two scam artist brothers with prior criminal histories, Darain and *508 Cory Atkinson (together, the “brothers” or the “Atkinsons”). 2 The Debtor provided telephonic direct-marketing of vehicle service contracts (each, a “VSC”). 3 A VSC is an aftermarket contract whereby a non-manufacturer third-party, known as an administrator, agrees to cover the repair costs of the vehicle of the contract purchaser (the “consumer”). 4 The marketing of the VSCs by the Debtor involved no verification of creditworthiness of the consumer. The Debtor sold more than 650,-000 VSCs between 2004 and 2009.
The Debtor did not enter into the VSC directly with the consumer. Instead, it pitched the VSC to the consumer on behalf of an administrator, and the administrator entered into the VSC with the consumer. The majority of the VSC purchases were financed, and the Debtor provided to the consumer a financing agreement, pursuant to which the consumer and yet-another entity, the financier (but not the Debtor), were the contracting parties.
The financed purchase of a VSC set into motion a complex system of advances and payments among and between the four parties involved with the VSC business model (the Debtor, the administrator, the financer, and the financer’s insurer). When a VSC was cancelled, things became even more complicated. Commissions and advances paid to the Debtor and the administrator had to be refunded; holdbacks, offsets and guaranties had to be calculated; and in some cases, consumer refunds were required.
By 2009, the Debtor was near collapse, amid high cancellation rates and the Atkin-sons’ treating the Debtor as their personal ATM. It also was facing investigations from numerous attorneys general (the states attorneys general, along with the Attorney General for the District of Columbia, collectively, the “Attorneys General”) for deceptive trade practices and other issues. The breaking point came on December 7, 2009, when Mepco Finance Corporation (“Mepco” 5 ), the principal financer, advised that it would no longer finance VSC contracts. Shortly thereafter, the Debtor stopped marketing VSCs and made several rounds of mass layoffs.
The Bankruptcy Case. On March 1, 2010 (the “Petition Date”), the Debtor filed a petition for relief [Docket No. 1] under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code” 6 ), thereby commencing this case (the “Case”). On March 11, 2010, the UCC was appointed [Docket No. 40] and soon became the oarsman of the Case. The Case was often contentious, marked by palpable hostility in darker moments. Within the first month of the Case, an adversary proceeding was brought by former employees claiming WARN Act violations [Adv. Proc. *509 Case No. 10-4160], the Attorney General for the State of Missouri filed a motion to appoint a trustee [Docket No. 41], and the UCC brought an adversary proceeding for an extension of the automatic stay [Adv. Proc. No. 10-4172], seeking to enjoin numerous parties, including the Atkinsons’ personal creditors, from satisfying judgments from the Atkinsons’ personal assets.
The Temporary Restraining Order. Despite these dynamics, on April 13, 2010, a preliminary injunction was entered [Adv. Proc. No. 10-4172, Docket No. 24]. The injunction halted the race-to-the-courthouse that was occurring outside the Case, whereby the Atkinsons’ personal creditors were seeking to obtain the personal assets of the Atkinsons and their wives — assets that had been siphoned off the Debtor. If those assets had been seized by the Atkin-sons’ creditors, the ability of the UCC to recover those assets for the estate later would have been seriously jeopardized. The injunction also bought the UCC time to ascertain the financial relationship between the Atkinsons and the Debtor. Eventually, a deal was struck, whereby the brothers returned to the estate almost all their assets.
The UCC-Mepco-Warrantech Litigation. Following the settlement with the Atkinsons, the parties turned their focus to other issues that needed to be resolved. However, after months of negotiating and posturing among the parties, there were no resolutions, and adversary proceedings between and among the UCC, Mepco, and Warrantech Automotive, Inc. and Vemeco, Inc. (two administrators; together, “War-rantech”) were commenced. 7 These actions would have been expensive and lengthy to litigate, and offered little certainty of result to any party. By the end of the summer of 2011, the Case again stood perilously close to becoming an operation for paying attorneys and sorting out secured creditors’ interests, instead of returning a distribution to the unsecured creditors and the Debtor’s consumer victims.
On September 19, 2012, several Attorneys General filed a Joint Motion to Compel Parties to Mediation [Docket No. 881], asking the Court to authorize a global mediation of the major pending matters. On October 26, 2011, the Court entered an order [Docket No. 992] authorizing mediation before another bankruptcy judge of this District. The Court provided for the participation of all major parties that had been actively involved in the Case, and did not exclude any party that requested to participate. Over the next eight months, the parties prepared for and participated in multiple mediation meetings. In April, the UCC announced that the parties had reached a global resolution agreement (the “GSA”), and that it planned to include the GSA terms in a plan of liquidation.
The Plan of Liquidation. On May 1, 2012, the UCC filed a Plan of Liquidation (the “Original Plan”) [Docket No. 1066] and a Disclosure Statement (the “Original Disclosure Statement”) [Docket No. 1067]. On June 5, 2012, the Court approved the Original Disclosure Statement subject to certain amendments and, later that day, the UCC filed a First Amended Plan and a First Amended Disclosure Statement.. The First Amended Plan included a class of the claims of consumer creditors (Class 6), and created the $14.1 million Consumer *510 Restitution Fund (“CRF”), funded by cash contributions from the Debtor and War-rantech, for making distributions to Class 6 claimants. In addition, to make the CRF possible, Mepco compromised $60 million in claims it held against the Debt- or. 8 The First Amended Plan incorporated the GSA’s releases of claims held by consumer creditors against certain non-debtors, including Mepco. 9
Objections to Confirmation. The deadline for casting ballots on the First Amended Plan and for filing objections to confirmation was July 9, 2012 [Docket No. 1101]. No party that had actively participated in the Case filed an objection to confirmation. Mepco, Warrantech, and the Steering Committee of the Attorneys General (the “Steering Committee”) filed briefs in support of confirmation [Docket Nos. 1138,1156 & 1160],
Two objections were timely filed by four consumer creditors. One was filed by Mr. Robert Schulz [Docket No. 1139], objecting to confirmation on the basis of the treatment of his claim. The other was filed by the High Objectors (filed jointly, the “High Objection”) [Docket No. 1135], objecting to confirmation on the basis of the inclusion of the releases of the consumer creditors’ claims against Mepco. The High Objection arises from the High Objectors’ desire to protect their interests in another federal lawsuit not before this Court. The High Objectors are the three named plaintiffs in a lawsuit in the U.S. District Court for the Northern District of California (the “Civil Action”), where they are suing Mepco in connection with the financing of the VSCs. The complaint in the Civil Action lists other, unnamed consumers as co-plaintiffs and appears to seek (but has not received) class action certification. 10
Motion to Modify. On July 11, 2012, the UCC filed a Motion to Amend by Interlineation (the “Motion to Modify”) [Docket No. 1147], seeking to modify the First Amended Plan by creating a new class, Class 12, into which the claims of the High Objectors and Mr. Schulz would be placed. Class 12 claims would be paid in full, and thus be unimpaired. This modification was sought to protect the estate the expense of litigation the objections and to prevent the consumer creditors from the risk of losing the GSA and its CRF. It would have cost more to litigate the objec *511 tions than the combined value of the objectors’ claims (approximately $11,000.00), while the cost of the objections being sustained was high: denial of confirmation and the collapse of the GSA and the Plan. As the Plan supporters have made clear: this is the only shot at a confirmed plan, and without it, the opportunity to ensure a significant distribution from the estate to the consumer creditors would be lost. The Debtor, the UCC, Mepco and Warrantech each have already given up significant positions and interests to reach the terms of the GSA, and there is no more ground for further compromise.
The Court set the Motion to Modify and the related Motion to Expedite for hearing on July 13, 2012. On July 12, 2012, the High Objectors filed a response (the “Response”) [Docket No. 1155]. Mr. Schulz did not file a response.
At the July 13th hearing, the High Objectors appeared through counsel and stated that they did not object to the Motion to Modify. Rather, they declined to take a position on the Motion to Modify, arguing that they had not had enough time to determine how to respond. In an order [Docket No. 1163] entered later that day, the Court (1) construed the Response to include an objection to the Motion to Expedite and overruled the objection, (2) found that no objection to the Motion to Modify had been brought, and (3) granted the Motion to Modify.
In that order, the Court also questioned the suggestion made at the hearing that the High Objectors now lacked standing to assert any objection, because of the now-unimpaired nature of their claims against the estate. It reserved the issue of whether the High Objectors had standing to object to confirmation on a ground other than that of the treatment of their claims, and construed the Objection to include an objection based on a lack of good faith — a ground some courts have suggested may afford a creditor with an unimpaired claim standing upon which to bring an objection to confirmation. 11
The Plan and Confirmation. On July 14, 2012, the UCC filed the First Amended Plan, as Modified. At 10:32 P.M. on July 15, 2012, the Objectors filed a “Submission by Consumer Objectors re: Hearing to Confirm Modified Plan of Liquidation” (the “Submission”) [Docket No. 1169]. In the Submission, the High Objectors represented, among other things, that they would not appear at the confirmation hearing. They also rejected the construction of their Objection as including an objection based on a lack of good faith, and stated specifically that they did not object on that ground.
On July 16, 2012, at 7:46 A.M., the UCC circulated to certain counsel, including counsel for the High Objectors, the dial-in information for telephonic appearances for the confirmation hearing. (See Certificate of Service [Docket No. 1173]).
At 9:27 A.M. on July 16, 2012, 12 the Court entered an order related to the Submission [Docket No. 1171], disregarding *512 several irrelevant or improperly raised points, and stating that the High Objectors were free to bring any objection, on a good faith ground or otherwise, provided they had standing to raise such objection. The order was transmitted contemporaneously via email to counsel (including to the High Objectors’ counsel) through the electronic docketing system.
The confirmation hearing commenced at 10:09 A.M. on July 16, 2012, and lasted one hour and twenty-six minutes. Neither the High Objectors nor their counsel appeared. 13 By the time of the hearing, Mr. Schulz had withdrawn his objection [Docket No. 1168], and no party appearing raised an objection to confirmation. 14 In addition, Mepco orally represented that it would not enforce the releases in the First Amended Plan, as Modified, as those releases applied to the High Objectors’ claims against Mepco. 15 The Court treats this representation — the Carve-Out — as constituting a further modification of the First Amended Plan, as Modified. 16
Consistent with its bench ruling, the Court now enters this order overruling the High Objection. By separate order, the Court will approve confirmation of the First Amended Plan, as Modified, along with Plan Supplements and the Carve-Out (together, the “Plan”).
II. SUBJECT MATTER JURISDICTION
The bankruptcy court, like every federal court, is a court of limited jurisdiction. It cannot adjudicate matters outside its jurisdiction, even if the parties consent, because jurisdiction cannot be created by consent. And it cannot rely upon § 105(a) to prop up jurisdiction, as § 105(a) cannot create or expand jurisdiction.
Jurisdiction to hear cases filed under title 11 of the United States Code is vested in the district court. 28 U.S.C. § 1334 (a) & (b). The district court refers bankruptcy cases to the bankruptcy court pursuant to a standing order of automatic reference, as permitted under 28 U.S.C. § 157 (a).
A proceeding before a bankruptcy court is either core or non-core. The bankruptcy court may hear and enter a final order in a core proceeding. 28 U.S.C. § 157 (b). The bankruptcy court also may hear a non-core proceeding. However, it does not have authority to enter a final order or judgment in a non-core proceeding without the consent of the parties. If the parties do not consent, the court makes recommendations of findings of fact and conclusions of law to the district court. 28 U.S.C. § 157 (c)(1). The bankruptcy court is obligated to determine whether a proceeding before it is core. 28 U.S.C. § 157 (b)(3).
*513 Confirmation of a plan is a core proceeding. 28 U.S.C. § 157 (b)(2)(L). Therefore the Court clearly has jurisdiction to adjudicate the issue of whether confirmation of the Plan is proper. However, the consumer creditors claims against non-debtor parties that are proposed to be released in the Plan are the subject of non-core proceedings. They do not arise under title 11 or arise in a case in title 11, 28 U.S.C. § 157 (b)(1), and they are not comparable to the examples of core proceedings in 28 U.S.C. § 157 (b)(2). As such, if the Court confirms the Plan, it also would adjudicate the consumer creditors’ non-core claims against Mepco through approval of the releases. Therefore, even though the Court has undisputed jurisdiction to adjudicate the issue of confirmation of the Plan, it separately must determine: (1) whether it has jurisdiction to adjudicate the consumer creditors’ claims against non-debtors such as Mepco; and (if it does have jurisdiction) (2) whether it may enter a final order or judgment on the adjudication of those claims in conjunction with confirming the Plan.
A. The Court has jurisdiction to adjudicate the consumer creditors’ claims against Mepco under the “related to” jurisdictional provision.
The Court has jurisdiction over a non-core proceeding if that proceeding is “related to” the bankruptcy case. 28 U.S.C. § 157 (c)(1) (providing that “[a] bankruptcy judge may hear a proceeding that is not a core proceeding but that is otherwise related to a case under title 11”). This Circuit has adopted the well-established “conceivable effect” test of Pacor, Inc. v. Higgins for determining whether a non-core proceeding is “related to” a bankruptcy case. Dogpatch Properties, Inc. v. Dogpatch U.S.A., Inc. (In re Dogpatch U.S.A., Inc.), 810 F.2d 782, 786 (8th Cir.1987). A non-core proceeding is “related to” a bankruptcy case if its outcome “could conceivably have any effect on the estate being administered in bankruptcy.” Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir.1984)(emphasis in original). This includes any outcome that “could alter the debtor’s rights, liabilities, options, or freedom of action ... and which in any way impacts upon the handling and administration of the bankrupt estate.” Id.
The consumer creditors’ claims against Mepco satisfy the “conceivable effect” test due to the financially entwined relationship between the Debtor and Mep-co. Under certain 2004 and 2009 agreements, upon cancellation of a VSC, the Debtor is obligated to refund and pay Mepco for unearned costs and profits, as well as late charges. In addition, the Debtor also agreed to broadly indemnify Mepco. 17 As a consequence of these obligations, a consumer claim against Mepco results in an additional claim by Mepco against the Debtor — and the prosecution and outcome of these claims has a conceivable effect on the estate. Resolution of the claims could take years and, due to the indemnities, this Case and the distribution to creditors could be protracted considerably. The Debtor could be drawn into the complicated, expensive and lengthy discovery process and litigation. Moreover, the indemnity obligations could be an issue in the equitable subordination adversary proceeding already pending before this Court. The claims against Mepco have not merely a conceivable effect on the estate, but a potentially significant one. Accordingly, *514 the Court has jurisdiction to adjudicate the consumer creditors’ claims against Mep-co. 18
B. The Court may enter a final order or judgment related to the consumer creditors’ claims against Mepco because the parties, including the consumer creditors to be released, consented.
No consumer creditor holding a claim against Mepco that would actually be released objected to the Court entering a final order or judgment on his claim against Mepco by way of confirmation of the Plan. The bankruptcy court’s jurisdiction to enter a final order or judgment in a non-core proceeding may be established by implied consent where no objection to jurisdiction is raised. Abramowitz v. Palmer, 999 F.2d 1274, 1280 (8th Cir.1993)(internal citations omitted). Therefore, those consumer creditors consented to jurisdiction to enter a final order or judgment. To the degree that the High Objectors do not consent to the Court exercising jurisdiction, their non-consent is irrelevant. The Court does not need the consent of the High Objectors because their claims against Mepco are carved out from the releases and will not be adjudicated by way of confirmation of the Plan.
III. FINDING OF GOOD FAITH
To be confirmed, a plan must be “proposed in good faith and not by any means forbidden by law.” 11 U.S.C. § 1129 (a)(3). Because there has been no objection based on the allegation that the Plan is proposed in bad faith or by a means forbidden by law, pursuant to Federal Rule of Bankruptcy Procedure (“Rule”) 3020(b)(2), 19 the Court finds that the Plan is proposed in good faith and not by any means forbidden by law. In the alternative, upon the evidence received, including evidence of the arms’ length negotiations through mediation conducted by a bankruptcy judge, the Court would find that the Plan is proposed in good faith and not by any means forbidden by law.
IV. THE HIGH OBJECTION IS OVERRULED FOR LACK OF STANDING.
In the High Objection, the High Objectors allege that they have standing to object under § 1109(b). At the time the High Objection was filed, the High Objectors’ claims against the estate were impaired. Following the July 13th modification of the First Amended Plan, their claims against the estate were unimpaired. In their Submission filed on July 15th, the High Objectors did not address the issue of standing in light of their now-unimpaired claims. And because they did not appear at the confirmation hearing, the Court has not heard from the High Objectors on the issue of standing in light of the Carve-Out. The Court assumes the High Objectors still object to confirmation and maintain that they have standing to do so.
The High Objectors, as holders of unimpaired claims, do not have standing to object to the treatment under the Plan of their claims against the estate. See, e.g., In re A.P.I., Inc., 331 B.R. 828, 862 (Bankr.D.Minn.2005). In addition, to the degree that the High Objectors may object based on the treatment under the Plan of any other creditor’s claim against the es *515 tate, they also lack standing. They cannot object on behalf of another party. Id. at 859 .
The High Objectors also lack standing to raise an objection on any other ground. Section 1109(b) establishes standing in a chapter 11 case, providing that “[a] party in interest, including ... a creditor ... may raise and may appear and be heard on any issue in a case under this chapter.” This section does not mean that every creditor is a party in interest. It means that a creditor may be party in interest. A “party in interest” is a person who holds a pecuniary interest that could be adversely affected by the outcome of the proceeding. See, e.g., Jeffries v. Browning (In re Reserves Dev. Corp. and RDC Monongah, Inc.), 78 B.R. 951, 957 (W.D.Mo.1986). A person, including a creditor, must be a “party in interest” to have standing under § 1109(b).
The Plan proposes to pay the High Objectors in full and carves out the High Objectors’ claims against Mepco from the releases. As a result, the High Objectors have no pecuniary interest that would be adversely affected by confirmation of the Plan. 20 Without a pecuniary interest, whatever objection the High Objectors may have is a generalized grievance, which does not establish standing. See In re A.P.I., Inc., 331 B.R. at 859 (providing that a “generalized grievance” does not afford standing). Therefore, the Court HOLDS that the High Objectors are not parties in interest to the confirmation proceeding, and ORDERS that the High Objection be OVERRULED for lack of standing.
V. IN THE ALTERNATIVE, THE HIGH OBJECTION WOULD BE OVERRULED ON OTHER GROUNDS.
In the alternative, if the High Objectors have standing, the Court nevertheless would overrule their objections on other grounds, as set forth below.
A. Objection Based on an Alleged Violation of the Right to Due Process.
The bankruptcy court may not order relief that results in a violation the U.S. Constitution or other federal law. The High Objectors argue that confirmation of the Plan violates their right to due process by enjoining them from proceeding on their claims against Mepco. However, the Plan carves out from the releases the High Objectors’ claims against Mepco. Nothing in the Plan prevents the High Objectors from proceeding on those claims. There is no violation of a right to due process.
B. Objection Based on an Alleged Improper Discharge of Mepco.
The High Objectors argue that the Plan should not be confirmed because it violates § 1129(a)(1), which requires that a plan to comply with bankruptcy law. They assert that the Plan violates bankruptcy law because the releases “impermissibly discharge Mepco.”
1. The Plan does not “discharge” Mep-co.
As a preliminary matter, the Court will clarify what may be a misunderstanding about how the Plan’s releases of *516 the non-debtors, including Mepco, would operate. The releases in the Plan would not “discharge” Mepco, or any other non-debtor, as the term “discharge” is usually meant in the bankruptcy context. A “discharge” (or a “bankruptcy discharge”) is a statutory construct and a bankruptcy law term of art. See, e.g., 11 U.S.C. §§ 727 (a), 1129(d) & 1328(a). It refers to a form of relief that permanently enjoins attempts to collect debts of a debtor by creditors of that debtor. A bankruptcy discharge is granted to a debtor under certain circumstances (such as upon an individuáis fulfillment of his statutory obligations, or pursuant to a plan). By statute, a bankruptcy discharge is a form of relief available only to a debtor. By confirming a plan that includes a release of a non-debtor, the bankruptcy court is not entering a bankruptcy discharge for that non-debtor; it is entering a release for that non-debtor. While there is similarity in effect between a bankruptcy discharge and a release of a non-debtor (both forms of relief adjudicate a claim for a debt), they are not interchangeable concepts. See In re Digital Impact, Inc., 223 B.R. 1 , 15 n. 9 (Bankr.N.D.Okla.1998) (noting that a release is “arguably broader” than a discharge). They are based on different law, embody different scopes, serve different purposes, and are imposed upon under different circumstances. Therefore, even if the Plan discharged the Debtor — -which it does not 21 — it would not discharge Mepco or any other non-debtor of any debt.
Unfortunately, the Plan shows a lawyer’s engrained tendency toward redundancy in drafting, which may have contributed to the confusion. The Plan uses “releases and discharges” to describe the scope of third-party releases in several places. The Court interprets this “discharges” language to have the common legal definition of the term (“acquits completely”). It is not a reference to granting a bankruptcy discharge to the Debtor or anyone else. The Court therefore construes the High Objectors’ objection to be that the releases in the Plan impermissi-bly release and acquit Mepco.
2. The releases do not impermissibly release and acquit Mepco in violation of § 524(e).
Section 524(e) provides that “discharge of a debt of the debtor does not affect the liability of any other entity on, or the property of any other entity for, such debt.” For example, a co-obligor on a debtor’s debt cannot use the debtor’s bankruptcy discharge to relieve himself of his obligations on that debt. The High Objectors argue that the releases imper-missibly release and acquit Mepco in violation of this section. However, on its face, § 524(e) cannot apply. The Debtor is not receiving a discharge and, even if it were, the Debtor and Mepco do not share liability for “such debt” related to the consumer creditors. Their debts — while related by virtue of the indemnifications — are distinct.
3. The releases do not impermissibly release and acquit Mepco in violation of an unequivocal prohibition on third-party releases.
In support of their § 1129(a)(1) objection, the High Objectors point to the Ninth and Tenth Circuits, and contend that these Circuits hold that third-party releases are unequivocally impermissible. The Court first notes that it is not bound the Ninth or Tenth Circuit law. Second, a review of the law of the Ninth and Tenth Circuits shows that the prohibition on third-party releases is not as unequivocal as the High Objec *517 tors suggest. The Ninth Circuit does not permit confirmation of a plan that includes compelled third-party releases. Billington v. Winograde (In re Hotel Mt. Lassen, Inc.), 207 B.R. 935, 941 (Bankr.E.D.Cal.1997). However, it does not appear to preclude confirmation of a plan that contains consensual third-party releases. Id. at 941 n. 7; see also In re Wool Growers Cent. Storage Co., 371 B.R. 768, 775 (Bankr.N.D.Tex.2007) (“Most courts allow consensual nondebtor releases to be included in a plan.”). Further, within the Tenth Circuit, the bankruptcy court in In re Digital Impact, Inc. noted the contract nature of a release and the need for consent. 22
Permitting confirmation of a plan that includes consensual releases recognizes that such releases sound in contract law, rather than arise under statutory bankruptcy law. In re Wool Growers Cent. Storage Co., 371 B.R. at 768 (internal citations omitted).
4. The third-party releases are consensual and, as such, do not impermissi-bly release and acquit Mepco.
Some courts have held that voting to accept a plan establishes consent to the third-party releases proposed in the plan. Given that a consensual third-party release sounds in contract law, the Court would agree that consent is necessary, and that voting to accept a plan may be the proper standard for establishing consent in many contexts. However, under the facts here, the Court would hold that voting to accept the plan is not required to establish the consent.
The Court first notes that a vote to reject a plan is not per se a refusal to consent to a third-party release in that plan — especially when the creditor does not file an objection to confirmation, the plan provides for a significant distribution to the creditor, and the creditor has not expressed an intent to pursue the third-party claim proposed to be waived. The purpose of voting is to express acceptance or rejection of the plan, to determine whether cramdown must be accomplished for confirmation. Its purpose is not to act as a mechanism for consent to third-party releases in a plan that is otherwise con-firmable. If a creditor wants to preserve his right to object to confirmation, on whatever ground, he must file an objection. If he does not file an objection, he generally cannot complain about the results of the confirmation proceeding — even if he voted to reject the plan.
The facts of the Case establish that the Plan’s third-party releases of the non-debtors, including Mepco, are consensual, regardless of the fact that not every single one of the more than 600,000 consumer creditors voted to accept the Plan. The support of those consumer creditors who cast ballots was overwhelming. Of the 412,589 consumer creditors who cast a ballot, 412,586 (99.9993%) voted to accept the Plan. That is, all but three (or .0007%) voted to accept the Plan — and even those three dissenters did not object to confirmation.
In addition, consent of the consumer creditors is shown by the support for confirmation of the Attorneys General. The Attorneys General are authorized to participate and intervene on behalf of the consumer creditors under Rule 2018(b), and have played a critical role in repre *518 senting those consumer creditors. Throughout this Case, the Attorneys General have been organized, public, and vocal. They were in contact with their consumer constituencies. Their positions were unbiased by the squeakiest wheel on the UCC, security interests of institutional clients, or the potential for class action certification and its attendant benefits. They formed the Steering Committee, led by the particularly effective counsel from the Attorney General of the State of Texas. The counsel for the members of the Attorneys General Executive Committee attended every hearing affecting the consumer creditors’ interests. It was upon the motion of certain Attorneys General that the mediation was ordered. Members of the Attorney General Executive Committee attended the mediation and played a critical role in facilitating the GSA. The Consumer Fund Advisory Committee provided for in the GSA is composed of state attorneys general. The Attorneys General filed proofs of claim, and several obtained authority to cast ballots on behalf of their constituencies. The presence of the Attorneys General gave the Court comfort that the interests of the consumer creditors were being vigorously pursued, allaying concerns that the Court had voiced at the beginning of the Case. 23
The support of the Attorneys General for confirmation reflects the will of the consumer creditors as to all terms of the Plan, including as to the releases. If their constituencies were not in favor of confirmation of the Plan, or if the Plan and its releases were not in their constituencies’ best interests, the Attorneys General would not have supported it. Thirty of the fifty-one Attorneys General voted in favor of the Plan (on behalf of their constituent consumer creditors) and no Attorney General voted to reject the Plan.
Under these circumstances, where the consumer creditors have clearly relied on the Attorneys General and the Attorneys General have borne the mantle of that responsibility, the Court would find that affirmative consent of the consumer creditors is established. State attorneys general are empowered under federal bankruptcy law to intervene on behalf of the consumer creditors for a reason: to ensure that the legal process results in the best possible resolution for the consumers without burdening each consumer with active participation (otherwise, many consumers would be marginalized, as meaningful participation may require personal legal expertise and sufficient resources to personally participate, or the financial wherewithal to obtain counsel to participate). To hold that the more commonly applied standard for establishing consent (that each affected creditor vote to accept the plan) is required under these circumstances would be impractical, undercut the role of attorneys general as contemplated under Rule 2018(b), and risk a less accurate indication of consent (as many consumer would not vote, even if they would consent).
5. In the alternative, even if the releases are not consensual, their inclusion in the confirmed Plan would not result in the improper release and acquittal of Mepco.
Even if the releases in the Plan cannot be determined to be consensual, under persuasive precedent from the U.S. Bankruptcy Court for the Western District *519 of Missouri, this fact does not make confirmation of the Plan per se improper. See In re Master Mortgage Invest., Fund, Inc., 168 B.R. 930 (Bankr.W.D.Mo.1994). Under Master Mortgage, the court may confirm a plan that includes compelled releases of non-debtors, if such extraordinary relief is warranted. Specifically, releases may be included in a confirmed plan if exceptional circumstances exist, the releases are widely supported by the creditor constituency (including those creditors who will be restrained), the constituency to be restrained receives significant benefits, and the creditors as a whole are being treated fairly. Id. at 935 .
All these Master Mortgage requirements are fulfilled here. Exceptional circumstances exist. Despite the incredibly complex nature of the claims and interests among and between the major parties in this Case, a unique and singular opportunity has presented itself in the hard-negotiated GSA: a significant return to the consumer creditors. However, if the third-party releases are not permitted in the Plan, the GSA evaporates, as neither Mepco nor Warrantech would agree to its terms. 24 Instead, the UCC, Mepco, and Warrantech would spend years litigating, resulting in a significant loss to the estate. Meanwhile, the consumer creditors most likely would end up with little return, and no return in the near future (further devaluing whatever return they may receive, if any). This is not a circumstance where the Debtor and its secured creditors filed for bankruptcy relief with the pre-con-ceived purpose of buying third-party releases at a lowball price. The opposite is true, and the GSA offers the rare opportunity to actually serve the truly injured.
Additionally, the releases are widely supported by the consumer creditors, directly and through the Attorneys General. No consumer creditor who would actually be restrained by the releases objected to confirmation, and the overwhelming majority of consumer creditors who cast a ballot voted to accept the Plan. All the Attorneys General that cast ballots voted to accept the Plan (and none objected), and the Steering Committee filed a brief in support of confirmation. And, the consumer creditors stand to obtain the significant benefit in the form of a distribution from the CRF.
Last, the consumer creditors as a whole would be treated fairly Master Mortgage provides that the court should look at five factors in determining the necessity and fairness of third-party releases included in a proposed plan.
First Factor: whether there is an identity of interest between the debtor and the third-party, such as an indemnity relationship, such that the suit against the non-debtor is, in essence, a suit against the debtor or will deplete assets of the debtor. As discussed in Part II.A, there is a significant financial relationship between the Debtor and Mepco. The third-party claims against Mepco, if litigated, would involve the Debtor, either by interpleading or discovery or both. The litigation would drain assets of the estate and cost considerable time and resources, possibly forcing the Case from a chapter 11 liquidation into a chapter 7 liquidation, which would result only in less of a return for the unsecured creditors.
Second Factor: whether the non-debt- or has contributed substantially to the *520 reorganization. The Debtor is not reorganizing. Its business plan was built on fraud and deception. There is nothing around which to reorganize. This Case is&emdash;in bankruptcy vernacular&emdash;a “liquidating 11.” A bankruptcy case may proceed as a liquidating 11, if doing so would benefit the creditors (including the unsecured creditors). It is a well-established use of chapter 11 relief.
A few courts suggest that compelled releases may not be appropriate in a liquidating 11 because the debtor necessarily does not need such extraordinary relief for the purpose of reorganizing. The Court recognizes this concern and the possible abuse that could occur if the releases of non-debtors are commonly included in a plan of liquidation. However, an orderly liquidation is a valid use of chapter 11 and one of its chief purposes&emdash;to ensure the best return for the unsecured creditors&emdash; should be promoted. If the plan of liquidation ensures the best possible outcome for unsecured creditors and the releases therein are critical to confirmation of the plan, then the fact that the case is not a reorganization should not per se prohibit confirmation of the plan. As discussed at Footnote 8 herein, Mepco will substantially contribute to the orderly liquidation of the Debtor, just as Warrantech and the Debt- or itself will do.
Third Factor: whether the injunction is so essential to the reorganization that, without it, there is little likelihood of success. Again, even though this Case is a liquidation, the same principal applies as in a reorganization. A release of a non-debtor is appropriate only if, without it, there would be little likelihood of the accomplishing of the goal of the chapter 11: the confirmation of a successful plan of liquidation that benefits the creditors, including the unsecured creditors. Here, there is no chance of a plan of liquidation without the releases, and if there is no confirmed plan, the Case either will be converted to a chapter 7 case or dismissed.
Fourth Factor: whether a substantial majority of creditors agreed to the injunction, including an overwhelming majority of the creditors to be restrained. Even if the result of the balloting of the consumer creditors alone does not establish the consumers creditors’ consent to the releases in the Plan, it clearly indicates that, of those consumer creditors who chose to vote and assert their right to be heard, the overwhelming majority voted to accept the Plan. In addition, all the Attorneys General that cast ballots (on behalf of their constituent consumer creditors) voted to accept the Plan, suggesting that the consumer creditors that they represent are supportive of the Plan. And no consumer creditor actually affected by the third-party releases or an Attorney General filed an objection to the Plan.
Fifth Factor: whether the plan provides a mechanism for payment of all, or substantially all, of the claims of the class affected by the injunction. As the evidence adduced at the confirmation hearing establishes, the funding of the $14.1 million CRF will ensure a return to the consumer creditors.
Fairness in general. In addition, the Court notes that the truly unfair result would be the one resulting if the High Objection is sustained. Without inclusion of the releases in the Plan, the GSA falls apart and there is no Plan. And no other plan will be presented. Instead, the Case eventually would be dismissed or converted to chapter 7. Under either scenario, it is unlikely that the consumer creditors would receive a distribution anywhere close to that offered through the Plan, if they obtain one at all. The High Objectors’ implied argument that denial of confirmation *521 is the fairer result is disingenuous, at best. Their position should be viewed for what it is: an effort to preserve the possibility of class action certification in their Civil Action on the backs of hundreds of thousands of consumer creditors, who have not objected to confirmation and who would receive a distribution on their claims via the CRF — without incurring the risk, time, expense, and class action attorney’s contingency fee that would be involved in a class action.
Public interest. Last, the Court notes that the public interest would not be served by sustaining the High Objection. The bankruptcy process would not provide a better form of relief and greater justice to the victims of the Debtors’ fraud and deception by denying them a distribution today, in exchange for allowing them to keep whatever claims the High Objectors happen to think those creditors may have against Mepco — claims that no creditor, other than the High Objectors, have suggested that they believe that they have or that they are interested in pursuing.
Therefore, if the releases of the consumer creditors’ claims against Mepco cannot be found to be consensual, then given the facts of this Case, the extraordinary circumstances, the analysis under Master Mortgage, public policy, and the interests of justice, the Court would overrule the High Objection, hold that confirmation of the Plan is proper, and order confirmation of the Plan.
VI. CONCLUSION
For the reasons set forth above, the Court ORDERS that the High Objection be OVERRULED for lack of standing. Alternatively, the Court would order that the High Objection be overruled as to each ground for the reasons set forth herein. Further, the Court ORDERS the UCC to serve a copy of this Order upon all parties entitled to such service, and to file a Certificate of Service evidencing such service within four (4) business days.
ORDER APPROVING CONFIRMATION OF THE PLAN
On July 16, 2012, the First Amended Plan of Liquidation, as Modified on July 13, 2012 (the “First Amended Plan, as Modified”) [Docket No. 1167], and the related supplements (the “Plan Supplements”) [Docket Nos. 1129 and 1144] 1 filed by the Official Committee of Unsecured Creditors (the “UCC”) came for confirmation hearing (the “Confirmation Hearing”). As of that date, the only objection to confirmation pending was a joint objection (the “High Objection”) [Docket No. 1135] filed by three consumer creditors, one of whom was Jackie L. High (the “High Objectors”). At the hearing, the First Amended Plan was further modified, without objection, by the inclusion of a carve-out (the “Carve-Out,” collectively, with the First Amended Plan, as Modified and the Plan Supplements, the “Plan”).) 2 [Docket No. 1182]). Now, incorporating *522 the findings of facts and conclusions of law set forth in the contemporaneously entered Order Overruling the Objection to Confirmation of the Plan and Memorandum Opinion in Support of Confirmation (the “Objection Order”) 3 ; and adopting the facts established by the declarations, affidavits, and certificates entered into evidence (including those at Docket Nos. 1148, 1149, 1153, 1157, 1161 and 1166); and accepting as true all other evidence adduced at the hearing; and upon review of the entire Case record; and upon consideration of the pleadings and memoranda filed in support of and against confirmation of the Plan and argument made on the papers and at oral argument; and upon finding that the record, including the applicable certificates of service, establishes proper notice and service of all confirmation-related documents, solicitations, notices, and disclosures, the Court FINDS the following facts and MAKES the following conclusions of law, and ORDERS that the Plan be CONFIRMED.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A.Findings of Fact and Conclusions of Law. The findings and conclusions set forth herein and in the Objection Order constitute the Court’s findings of fact and conclusions of law related to the confirmation of the Plan, pursuant to Fed. R. Bankr.P. 7052, made applicable to the proceeding pursuant to Fed. R. Bankr.P. 9014. The procedural history of the Plan, including the filing and service of the Plan and other confirmation-related documents, is set forth in the Case Docket and the Objection Order, and is uncontested. It need not be memorialized here, and is accepted as fact. All necessary notice and service of the Plan and other confirmation-related documents has been properly and sufficiently accomplished upon all parties entitled to such notice and service. To the extent any of the following findings of fact constitute conclusions of law, they are adopted as such. To the extent any of the following conclusions of law constitute findings of fact they are adopted as such.
B. Incorporation of Declarations. No objections were raised to the admission of any declaration, affidavit, or certificate entered into evidence at the Confirmation Hearing. No countervailing evidence was offered. The Court finds these documents to be true and persuasive, and adopts as a finding of fact the factual statements contained in each.
C. Transmittal and Mailing of Materials, Notice. The service of the various documents and materials and the posting of the materials on the website www. usfbankruptcy.com (the “USF Notice Website”) as described in the certificates of services [Docket Nos. 1108, 1110 and 1114], the affidavit of mailing [Docket No. 1110], and the affidavit of publication [Docket No. 1120] shall be deemed to have been transmitted and served in compliance with the solicitation order [Docket No. 1101], the Bankruptcy Rules, and the local Bankruptcy Rules for the Eastern District of Missouri. Such transmittal and service was adequate and sufficient, and no other or further notice is or shall be required.
D. Balloting and Acceptances of the Plan. The UCC did not solicit votes from Classes 1, 4, and 12 (because they are deemed to have accepted the Plan under § 1126(f)) or from Classes 9, 10, and 11 (because they are deemed to reject the *523 Plan under § 1126(g)). The outcome of the voting by the remaining classes on the Plan was as follows:
Class Accept the Plan Reject the Plan
Dollar Amount Voted Number of Votes/ Dollar Amount Voted/ Number of Votes/ /Percentage of Total Percentage of Percentage of Total Percentage of Dollar Amount Number of Votes Dollar Amount Number of Votes
2 $57,974,530.03/100 %_1/100 %_$0.00/0 %_0/0%_
3 $19,999,996.00/100 %_4/100 %_$0.00/0 %_0/0%_
5 $4,851,958.71/100 %_31/100 %_$0.00/0 %_0/0 %_
6 $2,062,916,244.00/99.9994 % 412,586/99.9993 % $12,676.00/0.0006 % 3/0.0007 %
7 $1,019,428,000.00/100 % 30/100 % $0.00/0 % 0/0 %
As a result of the balloting described above, and applying the rules for determining the acceptance or rejection of a plan under § 1126(c), (d), (f), and (g), the Classes voted to accept or reject the Plan as follows:
Class_Status_Voting Outcome_
1 — Non-Tax Priority Claims_Unimpaired Deemed to accept_
2 — Mepco Claims_Impaired Accept_
3 — Warranted! Claims_Impaired Accept_
4 — WARN Litigation Claims_Unimpaired Deemed to accept_
5 — Trade Claims_Impaired_Accept_
6 — Consumer Claims_Impaired_Accept_
7 — Subordinated Governmental Fines Impaired Accept and Penalties Claims_
8 — Prestige Claims Impaired Did not vote because it withdrew its _proof of claim (ECF# 1133)_
9 — WARN Litigation Class Exclusion Impaired Deemed to reject Claims_
10 — Intercompany Claims_Impaired_Deemed to reject_
11 — Equity Interests_Impaired_Deemed to reject_
12 — Consumer Objectors’ Claims_Unimpaired Deemed to accept
E. Compliance with the Bankruptcy Code. Except as noted below, the Plan satisfies all applicable requirements for confirmation of a plan as set forth in § 1121 et seq. of the Bankruptcy Code. In particular, the Plan satisfies all applicable requirements for confirmation contained in § 1129(a) of the Bankruptcy Code, except for the requirement in § 1129(a)(8) of the Bankruptcy Code that every impaired class shall have voted to accept the Plan.
F. Fair and Equitable: No Unfair Discrimination ( 11 U.S.C. § 1129 (b)). Class 9, Class 10, and Class 11 are deemed to reject the Plan. Based on the Master Disclosure Statement of June 5, 2012, the UCC’s Confirmation Brief and Response, the Eisenberg Declaration, and the evidence adduced at the Confirmation Hearing, the Plan does not discriminate unfairly and is fair and equitable with respect to Classes 9, 10, and 11, as required by § 1129(b)(1) of the Bankruptcy Code. *524 Thus, the Plan may be confirmed notwithstanding the failure to satisfy § 1129(a)(8) of the Bankruptcy Code. Upon Confirmation and occurrence of the Effective Date, the Plan shall be binding on the members of Classes 9,10, and 11.
G. Modifications to the Plan. The modifications to the First Amended Plan [Docket # 1097] do not materially adversely affect or change the treatment of any Claims or Interests. The modifications to the Plan that added Class 12 for the Consumer Objectors’ Claims did not adversely affect the treatment of the Consumer Objectors’ Claims and included only a minor alteration to the treatment of Class 5 claims so that the change was so minor that it is not a materially adverse change. Accordingly, pursuant to Bankruptcy Rule 3019, such modifications do not require additional disclosure under § 1125 of the Bankruptcy Code or resolici-tation of votes under § 1126 of the Bankruptcy Code, nor do they require that holders of Claims or Interests be afforded an opportunity to change previously cast acceptances or rejections of the Plan, thereby satisfying § 1127 of the Bankruptcy Code.
H. Objections. All parties have had a full and fair opportunity to litigate all issues raised in any objection, or which might have been raised, and all objections have been fully and fairly litigated.
I. No Opt-Out; No Objection to Releases by State Attorney General. Neither Mepco nor Warranteeh has exercised the OpNOut rights described in Section 12.2 of the Plan. No State Attorney General objected to the releases described in Article XIII of the Plan. In fact, twenty-nine State Attorneys General and the Attorney General for the District of Columbia, representing over $2 billion in Consumer Claims voted to accept the Plan.
J.Qualified Settlement Fund. The Consumer Restitution Fund shall be a qualified settlement fund within the meaning of § 1.468B-l(c) of the Treasury Regulations promulgated under Section 468B of the Internal Revenue Code.
RELIEF
Therefore, the Court ORDERS as follows:
1. Confirmation. The Plan in the form attached hereto as Exhibit A, Exhibit B, Exhibit C, 4 and Exhibit D (collectively, the “Exhibits”) is approved and confirmed under § 1129 of the Bankruptcy Code. The terms set forth in each of the Exhibits are incorporated by reference into and are an integral part of the Plan as a whole and this Confirmation Order. In particular, and without limiting the generality of the foregoing, the compromises, settlements, releases, exculpations, and injunctions described in Article XIII of Exhibit A are approved and confirmed.
2. Global Settlement Ayreement. The Global Settlement Agreement is approved and upon the occurrence of the Effective Date terms of the Global Settlement Agreement shall be binding upon the parties in accordance with the terms thereof. Pursuant to Section 2.1(a)(i)(b) of the Plan, on the Effective Date, Debtor shall assign to Mepco Finance PM, LLC all of its right, title and interest in and to the Sale and Purchase Agreement with Darain and Mia Atkinson dated November 30, 2010 for the Caymans House, and Darain and Mia Atkinson shall transfer to Mepco *525 Finance PM, LLC all of their right, title and interest in and to the Caymans House.
3. Objections. As of the date of the Confirmation Hearing, only the High Objector’s objection remained pending. It was overruled as set forth in the Objection Order. All other objections are or were waived, settled, untimely or otherwise un-meritorious.
4. Bar Dates for Certain Claims.
(a) As previously ordered in the Solicitation Order, October 5, 2012 shall be fixed as the final date for filing Consumer Claims. All Consumer Claims shall be filed in accordance with the procedures and processes approved in the Solicitation Order.
(b) All Holders of Claims arising as a result of the rejection of a prepetition executory contract or unexpired lease hereunder shall File with the Bankruptcy Court proofs of Claim on or before (30) days after the Effective Date or forever be barred from doing so;
(c) All Holders of asserted Administrative Claims, except for Professional Fee Claims, not paid prior to the Confirmation Date shall File with the Bankruptcy Court an application for allowance of an administrative expense claims or before thirty (30) days after the Confirmation Date, or forever be barred from doing so; and
(d) All Professionals and other entities requesting compensation or reimbursement of Professional Fee Claims pursuant to section 327, 328, 330, 331, or 503(b) of the Bankruptcy Code for services rendered prior to the Effective Date shall File with the Bankruptcy Court an application for final allowance of compensation and reimbursement of expenses no later than thirty (30) days after the Effective Date, or forever be barred from doing so.
5. Confidentiality Provisions. Any documents provided to the Consumer Restitution Fund, its agents, any Office of the Attorney General or any member of the Consumer Restitution Fund Advisory Committee that contains personally identifiable information as defined in 11 U.S.C. § 101 (41A), (41B) shall be treated as confidential and not subject to public disclosure under state and federal laws. The Consumer Restitution Fund, its agents, any Office of the Attorney General or any member of the Consumer Restitution Fund Advisory Committee that possesses personally identifiable information made confidential and privileged shall not delete information from a document so as to permit its disclosure. Consumers’ personally identifiable information, however, may be disclosed to the obligor, the Administrator, or the financing company associated with the Consumer’s Vehicle Service Contract for the purpose of determining the Consumer’s claim value. Consumers’ personally identifiable information related to a Consumer Claim may also be disclosed to an obligor if the Consumer Restitution Advisory Committee determines the obligor has potential liability for a Consumer Claim. Notwithstanding anything in the foregoing to the contrary, the Consumer Restitution Fund shall disclose documents in response to a valid subpoena and upon the request of a member of the Consumer Restitution Advisory Committee.
6. Releases, Exculpations and Injunctions. Pursuant to applicable law, the releases, exculpations and injunctions set forth in the Plan and implemented in this Order shall be and hereby are approved as proper, lawful and permissible. They are an integral part of the Plan and as fair, equitable, reasonable and in the best interests of the Debtor, the Estate and the holders of Claims. The releases, exculpations and injunctions set forth in the Plan and implemented in this Order *526 shall be and hereby are effective, binding and enforceable in accordance with their terms against and upon all persons and entities who may have had standing to assert such claims or causes of action against any of the parties protected by the releases, exculpations or injunctions. Notwithstanding the foregoing, the releases, exculpations, and injunctions with respect to Mepco contained in the Plan do not apply to the High Objectors (Jackie High, Loretta Alva, and Travis Peavy).
7. Notice of Entry of Confirmation Order. On or before the fourth (4th) business day following the date of the entry of this Confirmation Order, the UCC shall (a) serve notice of entry of this Confirmation Order (which, in the UCC’s discretion, may be combined with the Notice of Effective Date) (the “Confirmation Notice”) pursuant to Bankruptcy Rule 2002(f)(7), 2002(k), and 3020(c) by mail on all holders of all Non-Consumer Claims, the United States Trustee, and any other parties-in-interest entering their appearance in the Court’s ECF Notice System, (b) cause the Confirmation Notice to be published on the USF Notice Website, and (c) cause the Notice of Confirmation to be published in the St. Louis Daily Record.
8. Immediate Effectiveness. Notwithstanding the possible applicability of Bankruptcy Rule 6004(h), 7062, and 9014, the terms and provisions of the Confirmation Order shall be immediately effective and enforceable upon its entry, and shall become effective immediately upon occurrence of the Effective Date. The Bankruptcy Court shall retain jurisdiction with respect to all matters arising from or related to the implementation of this Confirmation Order.
Further, the Court ORDERS the UCC to serve a copy of this Order upon all parties entitled to such service, and to file a Certificate of Service evidencing such service within four (4) business days.
EXHIBIT A
PART I OF THE CONFIRMED PLAN OF LIQUIDATION:
THE FIRST AMENDED PLAN, AS MODIFIED ON JULY 13, 2012
UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION
In re: US FIDELIS, INC., Debtor.
Chapter 11
Hon. Charles E. Rendlen, III
Case No. 10-41902
FIRST AMENDED PLAN OF LIQUIDATION FOR U.S. FIDELIS, INC. DATED JUNE 5, 2012 PROPOSED BY THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS (AS MODIFIED)
THOMPSON COBURN LLP
By: /s/ David A. Warfield David A. Warfield, 34288MO dwarfield@thompsoncoburn.com Brian W. Hockett, 52984MO bhockett@thompsoncoburn.com One U.S. Bank Plaza, Suite 2600 St. Louis, MO 63101 Telephone: (314) 552-6000 Telecopier: (314) 552-7000
Attorneys for the Official Unsecured Creditors Committee
*527 INTRODUCTION
US Fidelis, Inc., formerly known as National Auto Warranty Services, Inc., d/b/a Dealer Services, NAWS, and Big Time Productions (the “Debtor”), is the debtor and debtor-in-possession in the above-captioned chapter 11 case. The Official Committee of Unsecured Creditors appointed in the above-captioned chapter 11 case pursuant to section 1102 of the Bankruptcy Code (the “Creditors Committee”) hereby proposes the following plan of liquidation for the resolution of the outstanding Claims against and Interests in the Debtor pursuant to section 1121(a) of the Bankruptcy Code. Reference is made to the Disclosure Statement (as that term is defined herein), distributed contemporaneously herewith, for a discussion of the Debtor’s history, business properties and operations, a summary and analysis of the Plan, and certain related matters. Subject to certain restrictions and requirements set forth in section 1127 of the Bankruptcy Code and Fed. R. Bankr.P. 3019, the Creditors Committee reserves the right to alter, amend, modify, revoke or withdraw the Plan prior to the Confirmation Date (as that term is defined herein).
ARTICLE I
DEFINED TERMS AND RULES OF INTERPRETATION
As used herein, capitalized terms shall have the meanings set forth below. Any term that is not otherwise defined herein, but that is used in the Bankruptcy Code or the Bankruptcy Rules, shall have the meaning given to that term in the Bankruptcy Code or the Bankruptcy Rules, as applicable.
1.1. Administrative Claim means a Claim for costs and expenses of administration of the Chapter 11 Case Allowed under section 503(b) or 507(a)(2) of the Bankruptcy Code, including: (a) any actual and necessary costs and expenses incurred after the Petition Date of preserving the Debtor’s Estate and operating the business of the Debtor (such as wages, salaries, commissions for services and payments for inventories, leased equipment and premises) and Claims of governmental units for taxes; (b) compensation for legal, financial, advisory, accounting and other services and reimbursement of expenses Allowed by the Bankruptcy Court under section 330, 331 or 503(b) of the Bankruptcy Code to the extent incurred prior to the Effective Date; and (c) all fees and charges assessed against the Debtor’s Estate under section 1930, chapter 123 of title 28, United States Code.
1.2. Affiliates means the Atkinsons, AGI Administration Services, Inc., Association of Service Contract Administrators, Atkinson Construction, Inc., Atkinson Group of Companies, Inc., Atkinson Realty, LLC, the Reinsurance Companies, Crescent, DS Direct, Inc., DC Atkinson Realty, LLC, Exodus LLC, Huge LLC, U.S. Fidelis Administration Services, Inc., U.S. Fidelis Insurance Risk Retention Group, Inc., and Wentzville International Speedway, Inc.
1.3. Allowed ... Claim means an Allowed Claim in the Class or category specified. Any reference herein to a particular Allowed Claim includes both the secured and unsecured portions of such Claim.
1.4. Allowed Claim means (a) any Claim for which a proof of claim has been timely Filed by the applicable Bar Date (or which pursuant to the Bankruptcy Code or a Final Order is not or shall not be required to be Filed); (b) any Claim that is listed in the Schedules as of the *528 Effective Date as not disputed, not contingent, and not unliquidated, and for which no proof of claim has been timely Filed; or (c) any Claim allowed pursuant to the Plan; provided, however, that with respect to any Claim in clauses (a) or (b) above, such Claim shall be considered Allowed only if and to the extent that (a) no objection to the allowance thereof has been interposed within the applicable period of time fixed by the Plan, the Bankruptcy Code, the Bankruptcy Rules or the Bankruptcy Court, or (b) such an objection is so interposed and the Claim shall have been Allowed for Distribution purposes only by a Final Order. Any Claim that has been or is hereafter listed in the Schedules as disputed, contingent, or unliquidated, and for which no proof of claim has been timely Filed is not considered Allowed and shall be expunged without any further notice to or action, order, or approval of the Bankruptcy Court.
1.5. Atkinsons means collectively Da-rain E. Atkinson, Mia Atkinson, Cory C. Atkinson, and Heather Atkinson, and their respective heirs, successors and assigns.
1.6. Atkinsons Settlement Order means that certain Order Granting the Settlement Motion entered by the Bankruptcy Court on October 22, 2010 where the Bankruptcy Court approved the Da-rain and Mia Atkinson Settlement Agreement and the Cory and Heather Atkinson Settlement Agreement.
1.7. Attorney General — Debtor Actions means litigation commenced by the Litigating States against the Debtor and other non-Debtors related to the Debtor’s business.
1.8. Attorney General Executive Committee means a committee comprised of representatives of the Attorneys General for the following states: Ohio, Texas, and Washington.
1.9. Attorney General Steering Committee means a committee comprised of representatives of the Attorneys General for the Attorney General Executive Committee and the state of Missouri.
1.10. Authorized Telemarketer means a business or other entity that is not an Affiliate of Warrantech, which Warrantech has authorized to conduct telemarketing on Warrantech’s behalf and/or which War-rantech has authorized to sell Vehicle Service Contracts on its behalf, in connection with the offer or sale of Vehicle Service Contracts to consumers that have no preexisting relationship with the Authorized Telemarketer. A pre-existing relationship is not created when an Authorized Telemarketer sells a Vehicle Service Contract to a consumer. Authorized Telemarketer does not include: (a) a business or other entity that acts as a motor vehicle wholesaler, manufacturer, dealer or seller; (b) an Original Equipment Manufacturer; (c) a business or other entity that offers or provides a Vehicle Service Contract to its members, employees, customers, or clients in connection with another transaction, service, or benefit; and (d) a business or other entity with an established business relationship with a consumer other than a relationship based solely on the offer or sale of a Vehicle Service Contract.
1.11. Available Cash means unrestricted Cash or other immediately available funds owned by the Debtor, the Estate, or the Liquidating Trust, as the case may be.
1.12. Avoidance Actions means any claims belonging to the Debtor or the Estate arising under sections 542, 543, 544, *529 545, 547 through 551 and 553 of the Bankruptcy Code.
1.13. Ballot means each of the ballot form or forms distributed to each Holder of a Claim in a Voting Class, on which the Holder is to indicate acceptance or rejection of the Plan.
1.14. Bankruptcy Code means title 11, United States Code, as now in effect or hereafter amended, as to be applicable to this Chapter 11 Case.
1.15. Bankruptcy Court means the United States Bankruptcy Court for the Eastern District of Missouri.
1.16. Bankruptcy Rules means the Federal Rules of Bankruptcy Procedure and the Local Rules of Bankruptcy Practice and Procedure of the United States Bankruptcy Court for the Eastern District of Missouri, as now in effect or hereafter amended, as to be applicable to this Chapter 11 Case.
1.17. Bar Date means the applicable deadline by which a proof of claim must have been or must be Filed, as established by an order of the Bankruptcy Court, including the Bar Date Order (Non-Consumer) and the Consumer Class Proof of Claims Order. The term “Bar Date” also includes the deadline for Filing Administrative and Professional Fee Claims established pursuant to Section 15.4(a) and (b) of the Plan respectively, and the deadline for Filing Claims arising from rejection of executory contracts and unexpired leases established pursuant to Article X of the Plan.
1.18. Bar Date Order (Non-Consumer) means the Order Granting Joint Motion To Establish Trade Claim Bar Date And Approve Trade Claim Bar Date Notice (Docket No. 419) entered by the Bankruptcy Court on October 7, 2010.
1.19. Business Day means any day, other than a Saturday, Sunday or “legal holiday” (as defined in Bankruptcy Rule 9006(a)).
1.20. CARRG means the Capital Assurance Risk Retention Group acting by or through its Receiver appointed by the court of Common Pleas of the Fifth Judicial Circuit in Richland County, South Carolina.
1.21. Cash means legal tender of the United States of America and equivalents thereof.
1.22. Caymans House means the real and personal property owned by Darain and Mia Atkinson, located at 414 Water Kai Road in the Rum Point area of Grand Cayman Island that is subject to a Sale and Purchase Agreement with Debtor dated November 30, 2010.
1.23. Chapter 11 Case means the chapter 11 case pending for the Debtor in the Bankruptcy Court as Case No. 10-41902.
1.24. Claim(s) means a “claim,” as defined in section 101(5) of the Bankruptcy Code.
1.25. Claims Objection Deadline means the last day for Filing objections to Non-Consumer Claims against the Debtor, which day shall be the later of thirty (30) days after the Effective Date or 30 days after the Bar Date applicable to a particular Claim.
1.26. Class means a category of Holders of Claims or Interests, as described in Article V of the Plan.
1.27. Committee-Atkinsons Litigation means that certain litigation filed by the Committee against the Atkinsons et al. in the Bankruptcy Court and pending as Adv. Proc. No. 10-04172.
*530 1.28. Committee-Mepco Subordination Litigation means litigation commenced by the Creditors Committee against Mepco seeking inter alia the equitable subordination of the Mepco Claims which is pending as Adv. Proc. No. 11-04308.
1.29. Confirmation Date means the date on which the Clerk of the Bankruptcy Court enters the Confirmation Order on the docket of the Bankruptcy Court for the Chapter 11 Case.
1.30. Confirmation Hearing means the hearing held by the Bankruptcy Court pursuant to section 1128 of the Bankruptcy Code to consider confirmation of the Plan, as such hearing may be adjourned or continued from time to time.
1.31. Confirmation Order means the order of the Bankruptcy Court confirming the Plan pursuant to section 1129 of the Bankruptcy Code.
1.32. Consumer means a Person (a) that purchased, entered into or was solicited to purchase or enter into a Vehicle Service Contract (a defined term at Section 1.120) from or through the Debtor or an Affiliate, or (b) to whom the Debtor or an Affiliate marketed, offered, contacted, solicited or attempted to sell a Vehicle Service Contract.
1.32a Consumer Objectors means Jackie L. High, Loretta Alva, Travis Peavy, and Robert Schulz.
1.33. Consumer Class Proofs of Claim means those class Proofs of Claims for Consumer Claims filed by certain of the States Attorneys General on behalf of the Consumers.
1.34. Consumer Class Proof of Claims Order means that certain Order entered by the Bankruptcy Court permitting the States Attorneys General to file the Consumer Class Proofs of Claim for voting purposes.
1.35. Consumer Claims means any and all Claims held by a Consumer:
(a) that arise out of or relate to a Vehicle Service Contract purchased or entered into by a Consumer from or through the Debtor or an Affiliate, whether or not a Proof of Claim has been Filed under Section 1.33 or 1.67 with respect to such Claim;
(b) that arise out of or relate to the actions and conduct of the Debtor or an Affiliate in soliciting, marketing or contacting a Person to purchase or enter into a Vehicle Service Contract, whether or not the Person purchased a Vehicle Service Contract, and whether or not a Proof of Claim has been Filed under Section 1.33 or 1.67 with respect to the such Claim;
(e) that arise out of or relate to the actions and conduct of the Debtor or an Affiliate in refunding all or a portion of the consideration paid for Vehicle Service Contracts purchased from or through the Debtor or an Affiliate, whether or not a Proof of Claim has been Filed under Section 1.33 or 1.67 with respect to such Claim;
(d) that arise out of or relate to the actions and conduct of the Debtor or an Affiliate with regard to a Consumer Payment Plan sold or offered to a Consumer by the Debtor or an Affiliate, including but not limited to the statements, representations or disclosures made to a Consumer by the Debtor or an Affiliate, and the servicing or the termination of the Consumer Payment Plan, whether or not a Proof of Claim has been Filed under Section 1.33 or 1.67 with respect to such Claim;
*531 (e) that arise out of or relate to the actions and conduct of the Debtor or an Affiliate with regard to the termination of a Vehicle Service Contract purchased or entered into by a Consumer from or through the Debtor or an Affiliate, whether or not a Proof of Claim has been Filed under Section 1.33 or 1.67 with respect to such Claim; and
(f) for or arising from: (i) violations of consumer protection statutes, regulations or codes by the Debtor or Affiliates; (ii) unfair and deceptive practices in the sale and marketing of Vehicle Service Contracts by the Debtor or an Affiliate or the Debtor’s agents 1 ; (iii) violations of state or federal telemarketing laws and regulations by the Debtor, an Affiliate, or the Debtor’s agents; (iv) violations of state or federal automatic dialing, “Do Not Call” and announcing device laws and regulations by the Debt- or, an Affiliate, or the Debtor’s agents; (v) violations of business registration laws by the Debtor or an Affiliate; (vi) violations of the Drivers’ Privacy'Protection Act by the Debtor or an Affiliate; (vii) unfair and deceptive refund practices by the Debtor or an Affiliate; (viii) aiding or abetting or providing substantial assistance or support by Warrantech or Mepco to the Debtor or an Affiliate with respect to any of the foregoing; or (ix) Warrantech or Mepco consciously, intentionally, or negligently avoiding knowing of the telemarketing practices of the Debtor or an Affiliate, and as to each of the foregoing whether or not a Proof of Claim has been Filed under Section 1.33 or 1.67 with respect to such Claim.
The foregoing definition includes all Consumer Claims, whether asserted by an individual Consumer or on behalf of one or more Consumers by any other Person in any litigation, class action, arbitration or administrative proceeding.
1.35a Consumer Objectors’ Claims means the Claims of the Consumer Objectors, which shall be deemed Allowed Claims in the following amounts: Jackie L. High in the amount of $2,923.02; Loretta Alva in the amount of $2,600.00; Travis Peavy in the amount of $2,323.00; and Robert Schulz in the amount of 3,359.00.
1.36. Consumer Payment Plan means a contract between a Consumer and a third party pursuant to which the Consumer agreed to pay the purchase price of a Vehicle Service Contract over a period of time and in installments as set forth in the payment plan.
1.37. Consumer Restitution Fund means the fund established pursuant to Section 8.2 of the Plan and the Consumer Restitution Fund Agreement.
1.38. Consumer Fund Advisory Committee means the committee composed of States'Attorneys General as established by the Attorney General Executive Committee pursuant to Section 8.2(e) of the Plan to supervise and direct the Consumer Restitution Escrow Agent.
1.39. Consumer Restitution Fund Ayreement means the agreement between and among the Debtor and the Attorney General Steering Committee, specifying the rights, duties and responsibilities of the Consumer Restitution Escrow Agent *532 under the Plan, in substantially the form set forth in the Plan Supplement.
1.40. Consumer Restitution Fund As sets means the assets listed in Section 8.2(b) and (c).
1.41. Consumer Restitution Fund Distribution Procedures means the procedures for liquidating Consumer Claims and distributing funds from the Consumer Restitution Fund
1.42. Consumer Restitution Escrow Agent means the Person(s) to serve as the custodian and claims administrator for .the Consumer Restitution Fund pursuant to Section 8.2(d) or such successor as appointed pursuant to the Consumer Restitution Fund Agreement.
1.43. Cory and Heather Atkinson Settlement Agreement means that certain Settlement Agreement dated September 29, 2010 which was approved by the Bankruptcy Court in the Atkinsons Settlement Order.
1.44. Creditor means the Holder of a Claim against the Debtor.
1.45. Creditors Committee has the meaning ascribed to it in the Introduction hereto.
1.46. Crescent means Crescent Manufacturing Company, L.L.C., a limited liability company organized under and existing by virtue of the laws of Missouri and regularly referred to as Crescent Manufacturing Company and Crescent Manufacturing, LLC.
1.47. Darain and Mia Atkinson Settlement Agreement means that Amended and Restated Settlement Agreement dated October 19, 2010 which was approved by the Bankruptcy Court in the Atkinsons Settlement Order.
1.48. Debtor has the meaning ascribed to it in the Introduction hereto.
1.49. Disallowed Claim means a Claim, or any portion thereof, that (a) has been disallowed by Final Order, (b) is Scheduled at zero or as contingent, disputed, or unliquidated and as to which a Bar Date has been established but no proof of claim has been timely Filed or deemed timely Filed with the Bankruptcy Court pursuant to either the Bankruptcy Code or any Final Order of the Bankruptcy Court or otherwise deemed timely filed under applicable law, or (c) is not Scheduled and as to which a Bar Date has been established but no proof of claim has been timely Filed or deemed timely Filed with the Bankruptcy Court pursuant to either the Bankruptcy Code or any Final Order of the Bankruptcy Court or otherwise deemed timely filed under applicable law.
1.50. Disclosure Statement means the written disclosure statement (including all schedules thereto or referenced therein) that relates to the Plan, as approved by the Bankruptcy Court pursuant to section 1125 of the Bankruptcy Code, as the same may be amended, modified or supplemented.
1.51. Disputed.. .Claim means a Disputed Claim in the Class or category specified.
1.52. Disputed Claim means any Claim, or any portion thereof, that is neither an Allowed Claim nor a Disallowed Claim.
1.53. DS Direct means DS Direct, Inc.
1.54. ECHO Merchant Agreement means that certain Merchant Bank Card Agreement and/or ACH Services Agreement dated July 21, 2004 by and between First Regional Bank and Electronic Clear *533 ing House, Inc. and National Auto Warranty Services, Inc.
1.55. ECHO Reserve Account mean (a) that certain Reserve Account maintained by First Citizens Bank & Trust Company in the name of the Debtor at WestAmerica Bank pursuant to the ECHO Merchant Agreement and (b) the Debtor’s Account at U.S. Bank into which funds released from the WestAmerica Bank Reserve Account are held pursuant to and in accordance with the ECHO Settlement Order.
1.56. ECHO Settlement Order means that certain Order entered by the Bankruptcy Court on September 30, 2010 in Adversary Proceeding No. 10-04223 approving the Agreement of Settlement and Release dated September 29, 2010 by and among the Debtor, First Citizens Bank and Trust Company, Intuit, Inc., and Electronic Clearing House, Inc.
1.57. Effective Date means the Business Day upon which the Plan becomes effective as provided in Article XII of the Plan.
1.58. Estate means the estate of the Debtor created under section 541 of the Bankruptcy Code.
1.59. Face Amount means (a) when used in reference to a Disputed or Disallowed Claim, the full stated amount claimed by the Claim Holder in any proof of claim timely filed with the Bankruptcy Court or otherwise deemed timely filed by any Final Order of the Bankruptcy Court or other applicable bankruptcy law, and (b) when used in reference to an Allowed Claim, the allowed amount of such claim.
1.60. File, Filed or Filing means file, filed or filing with the Bankruptcy Court or its authorized designee in the Chapter 11 Case.
1.61. Final Order means an order or judgment of the Bankruptcy Court, or other court of competent jurisdiction, as entered on the docket in the Chapter 11 Case, the operation or effect of which has not been stayed, reversed, or amended and as to which order or judgment (or any revision, modification, or amendment thereof) the time to appeal or seek review or rehearing has expired and as to which no appeal or petition for review or rehearing was filed or, if filed, remains pending; provided, however, that the possibility that a motion under section 502(j) of the Bankruptcy Code, Rule 59 or Rule 60 of the Federal Rules of Civil Procedure or any analogous rule may be, but has not been, filed shall not cause an order not to be a Final Order.
1.62. Global Settlement Agreement means that certain Global Settlement Agreement by and among the Debtor, the Creditors Committee, Mepco, Warrantech, the WARN Litigation Class Claimants, and the Attorney General Steering Committee, as may be amended, together with all exhibits annexed thereto setting forth the compromise and settlement of various issues among the parties thereto, a copy of which will be Filed as part of the Plan Supplement.
1.63. Governmental Fines and Penalties Claims means Claims against the Debtor held by a Governmental Unit that are in the nature of fines or penalties and are not compensation for any actual pecuniary loss suffered by such Governmental Unit.
1.64. Governmental Unit shall have the same meaning as set forth in section 101(27) of the Bankruptcy Code.
*534 1.65. Holder means the Person holding the beneficial interest in a Claim or Interest.
1.66. Impaired means, when used in reference to a Claim or Interest, a Claim or Interest that is impaired within the meaning of section 1124 of the Bankruptcy Code,
1.67. Individual Consumer Proofs of Claim means all of those proofs of claim Filed in the Chapter 11 Case by Consumers or private class action attorneys on behalf of Consumers. For avoidance of doubt, the term “Individual Consumer Proofs of Claim” shall include the Proof of Claims filed by David O. Rucker (Claim # 508) on behalf of a purported class of Consumers.
1.68. Intercompany Claims means a Claim asserted by any one of the Affiliates against the Debtor.
1.69. Interest means the legal, equitable, contractual and other rights of the Holders of equity interests in the Debtor.
1.70. Internal Revenue Code means the Internal Revenue Code of 1986, as amended.
1.71. Later Monetized Assets means any Cash proceeds realized from the post-Effective Date sale, lease or liquidation of any of the Liquidating Trust Assets (including Litigation Claims but excluding the Malpractice Claim).
1.72. Later Monetized Asset Distribution means the Distribution to Creditors of the Cash proceeds of the Later Monetized Assets in the following order: (a) reimbursement of all fees and expense incurred in investigating, pursuing, monetizing and collecting the Later Monetized Assets, (b) next, sufficient Cash to the Liquidating Trust so that the Trade Creditors will receive (together with all other amounts) a Distribution of not less than 81% of their Allowed Claims, and (c) finally, any remaining amounts to be split one-third to the Consumer Restitution Fund, one-third to the Liquidating Trust, and one-third to Mepco.
1.73. Liquidating Trust means the trust established pursuant to Section 8.3 of the Plan and the Liquidating Trust Agreement to hold the Liquidating Trust Assets and make distributions to holders of Allowed Claims, other than Holders of Consumer Claims.
1.74. Liquidating Trust Agreement means the agreement between and among the Debtor and the Liquidating Trustee, in form and substance acceptable to the Creditors Committee specifying the rights, duties and responsibilities of and to be performed by the Liquidating Trastee under the Plan, in substantially the form set forth in the Plan Supplement; provided, that after the Effective Date, any modifications made to the Liquidating Trust Agreement shall be in form and substance acceptable to the Liquidating Trustee.
1.75. Liquidating Trust Assets means all assets of the Debtor or the Estate remaining after payment by the Debtor of all Allowed Unclassified Claims, the Mepco Postpetition Claim, the Mepco Prepetition Claims, the WARN Litigation Class Claim, and funding of the Debtor’s obligations to contribute to the Consumer Restitution Fund, to be transferred by the Debtor under this Plan into the Liquidating Trust.
1.76. Liquidating Trust Professionals means the agents, financial advisors, attorneys, consultants, independent contractors, representatives and other professionals of the Liquidating Trustee (in their capacities as such).
*535 1.77. Liquidating Trustee means the Person designated by the Creditors Committee, after consultation with the Debtor, prior to the Confirmation Date and approved by the Bankruptcy Court pursuant to the Confirmation Order to administer the Plan in accordance with the terms of the Plan and the Liquidating Trust Agreement and to take such other actions as may be authorized under the Liquidating Trust Agreement, and any successor thereto.
1.78. Litigating States means those states or districts whose States Attorneys General have sued the Debtor or otherwise taken action against the Debtor, comprised of the following states: Arkansas, Iowa, Idaho, Kansas, Maryland, Missouri, North Carolina, Ohio, Oregon, Pennsylvania, Texas, Washington and Wisconsin.
1.79. Litigating States-Debtor Consent Judgments means consent judgments between each of the Litigating States and the Debtor, copies of which will be included in the Plan Supplement and which will contain prospective injunctive relief, restitution to be paid in accordance with the terms of the Plan and the Global Settlement Agreement, and fines and penalties to be treated in accordance with the Plan.
1.80. Litigation Claims means the Claims, rights of action, suits or proceedings, whether in law or in equity, whether known or unknown, that the Debtor or Estate may hold against any Person, including, but not limited to, (a) any claims, rights of action, suits or proceedings of the Debtor or the Estate arising or arising under or resulting from contractual subordination, application of section 510(b) of the Bankruptcy Code, or existing under any other applicable law, (b) the Avoidance Actions, (c) all causes of action against the Debtor’s current and former officers, directors, employees, shareholders or professionals under section 1123(b)(3) of the Bankruptcy Code related to conduct in connection with the Debtor prior to or after the Petition Date, but excluding the Malpractice Claim. Notwithstanding the foregoing, and for the avoidance of doubt, the term “Litigation Claims” does not include the Committee-Mepco Subordination Litigation, which will be dismissed by the Creditors Committee on the Effective Date, or any other claims, demands or rights of action that the Debtor will be deemed under the Plan or the Global Settlement Agreement to have released on the occurrence of the Effective Date.
1.81. Malpractice Claim means the claims held by the Debtor to be transferred to the Liquidating Trust on the Effective Date for any of the following: (a) malpractice or professional negligence committed by any attorneys retained by the Debtor before or after the Petition Date; and (b) the value of any reduction in attorneys’ fees to by paid by the Estate to a Professional retained by the Debtor, as is subsequently agreed to by such attorneys in resolution of any claim described in part (i) of this section or ordered by the Bankruptcy Court; and (c) the value of any attorneys’ fees previously paid by the Estate to a attorneys retained by the Debtor that are subsequently disgorged and recovered by the Liquidating Trust, as is subsequently agreed to by such attorneys in resolution of any claim described in part (i) of this section or ordered by the Bankruptcy Court.
1.82. Malpractice Claim Distribution means the Distribution to Creditors of the recoveries on account of the Malpractice Claim in the following order: (a) reimbursement of all fees and expenses incurred in investigating, pursuing, monetiz *536 ing and collecting the Malpractice Claim recovery, and (b) the remaining recoveries on account of the Malpractice Claim shall be Distributed one-half to the Consumer Restitution Fund and one-half to the Liquidating Trust.
1.83. Mepco means Mepco Finance Corporation.
1.84. Mepco Claims means all Claims against the held or asserted by Mepco against the Debtor, whether Filed in a proof of claim or otherwise, including the Mepco Postpetition Claim, the Mepco Pre-petition Secured Claim, the Claims against the Debtor represented by the Mepco Proof of Claim or the Committee-Mepco Subordination Litigation.
1.85. Mepco’s Notice Reimbursement Obligations. Within five Business Days after approval of the Disclosure Statement, Mepco shall pay to the Debtor Cash in the amount of $132,000 to be segregated and used by the Debtor to pay Noticing Costs. In the event that Noticing Costs are less than $368,000, then the Debtor shall refund the entire $132,000 amount to Mepco by no later than 30 days following the Effective Date. In the event that the Notice Costs are more than $368,000 but less than $500,000, then the Debtor shall refund to Mepco by no later than 30 days following the Effective Date, the difference between $500,000 and the actual amount of the Noticing Costs. Mepco may elect to satisfy Mepco’s Noticing Reimbursement Obligations by directing the Debtor to reduce the amount of Mepco’s Prepetition Secured Claim by $132,000.
1.86. Mepco Postpetition Claim means the Allowed Claim held by Mepco in the amount of $1,380,594.63 arising out of the Debtor’s postpetition use of cash collateral in which Mepco held an interest and for which Mepco did not receive adequate protection.
1.87. Mepco Prepetition Secured Claim means the Allowed Claim by Mepco in the amount of $225,465.09 which represents that portion of the Mepco Proof of Claim that is secured by a lien pursuant to Section 506(a) of the Bankruptcy Code.
1.88. Mepco Proof of Claim means that proof of claim Filed by Mepco on November 3, 2010 and denominated by the Bankruptcy Court as Claim No. 832 in the amount of $57,974,530.03, as may heretofore or hereafter be amended.
1.89. Mepco Released Parties means Mepco, its parent, its subsidiaries, successors, predecessors, attorneys, employees, agents, assigns, directors, officers and shareholders.
1.90. Mepco Unsecured Claims means that portion of the Mepco Claims that are not comprised of the (a) Mepco Postpetition Claim and (b) the Mepco Prepetition Secured Claim.
1.91. Mepco Unsecured Claim Distribution means the Distribution to Mepco from the Liquidating Trust on account of the Mepco Unsecured Claim consisting of all amounts remaining in the Liquidating Trust after payment of (a) all Unclassified Claims, (b) all Allowed Non-Tax Priority Claims, (c) the Mepco Postpetition Claim (d) the Mepco Prepetition Secured Claim, (e) the amounts due under the WARN Litigation Class Settlement Order, (f) funding the Consumer Restitution Fund, (g) all Allowed Class 5, Class 7, and Class 8 Claims, and (h) payment of all expenses of the Liquidating Trust.
1.92. Non-Consumer Claim means a Claim held by anyone other than a Consumer, which shall include but not necessarily be limited to Claims held by Mepco, *537 Warrantech, the WARN Litigation Class Claimants, holders of WARN Litigation Class Exclusion Claims, Trade Creditors, Prestige, the Affiliates and Governmental Units on account of Governmental Fines and Penalties Claims.
1.93. Non-Tax Priority Claim means a Claim, other than an Unclassified Claim or the WARN Litigation Class Claims, that is entitled to priority in payment pursuant to section 507(a) of the Bankruptcy Code.
1.94. Notice Agent means GCG, Inc. or any successor or replacement approved by the Bankruptcy Court.
1.95. Noticing Costs means all costs incurred by the Committee and/or the Debtor in connection with establishing and maintaining the USF Notice Website, mailing notice of the Plan to Consumers pursuant to the Solicitation Order, tabulating ballots submitted by Consumers in connection with the Plan, publishing a notice of the Confirmation Hearing in the USA Today, and responding to telephone inquiries from Consumers before the Confirmation Hearing. For the avoidance of doubt, the term “Noticing Costs” does not include any amounts charged by the Notice Agent in connection with the submission and evaluation of Individual Consumer Proofs of Claim.
1.96. Opt-Out Right means the right of Mepco and/or Warrantech to opt out of the Plan, as described in more detail in Section 12.2 of the Plan.
1.97. Person means an individual, corporation, partnership, joint venture, association, joint stock company, limited liability company, limited liability partnership, trust, estate, unincorporated organization, or other entity.
1.98. Petition Date means March 1, 2010, the date on which the Debtor Filed the petition for relief commencing the Chapter 11 Case.
1.99. Plan means this first amended chapter 11 plan of liquidation, including the Plan Supplement and all supplements, appendices and schedules thereto, either in its present form or as the same may be altered, amended or modified from time to time; provided, that each of the documents referenced in this definition shall be in form and substance reasonably acceptable to the Creditors Committee.
1.100. Plan Supplement means the forms of documents specified in Section 15.9 of the Plan, which documents shall be in form and substance reasonably acceptable to the Creditors Committee, Mepco, Warrantech, and the Attorney General Steering Committee and such additional documents and disclosures referenced herein as being included in the Plan Supplement; provided, that after the Effective Date, any modifications made to any of the documents specified in Section 15.9 of the Plan shall be in form and substance reasonably acceptable to the parties thereto, and to the Liquidating Trustee and the Consumer Restitution Fund Advisory Committee, as applicable.
1.101. Prestige means Prestige Administration, Inc.
1.102. Prestige Claims means all Claims held by Prestige against the Debt- or.
1.103. Priority Tax Claim means a Claim of a governmental unit of the kind specified in sections 502(i) and 507(a)(8) of the Bankruptcy Code.
1.104. Professional means (a) any professional employed in the Chapter 11 Case pursuant to section 327 or 1103 of the *538 Bankruptcy Code or otherwise, (b) any professional or other Person seeking compensation or reimbursement of expenses in connection with the Chapter 11 Case pursuant to section 503(b)(4) of the Bankruptcy Code, and (c) any professional retained by the Liquidating Trustee following the Effective Date. For the avoidance of doubt, the term “Professional” shall include Amherst Partners LLC and Scott A. Eisenberg, acting in his capacity as Chief Restructuring Officer of the Debtor.
1.105. Professional Fee Claim means an Administrative Claim under section 330(a), 331 or 503 of the Bankruptcy Code for compensation of a Professional or other Person for services rendered or expenses incurred in the Chapter 11 Case on or prior to the Effective Date (including expenses of the members of the Creditors Committee incurred as members of the Creditors Committee in discharge of their duties as such).
1.106. Pro Rata means, with respect to Claims, at any time, the proportion of the Face Amount of a Claim in a particular Class or Classes bears to the aggregate Face Amount of all Claims (including Disputed Claims, but excluding Disallowed Claims) in such Class or Classes, unless the Plan provides otherwise.
1.107. Reinsurance Companies means Atkinson Reinsurance, Ltd. and Atkinson II Reinsurance, Ltd.
1.108. Released Parties means those Persons who are receiving releases pursuant to Article XIII of the Plan and/or the Global Settlement Agreement.
1.109. Releases means those certain liability releases set forth in the Global Settlement Agreement and in Article XIII of the Plan.
1.110. Scheduled means with respect to any Claim or Interest, the status and amount, if any, of such Claim or Interest as set forth in the Schedules.
1.111. Schedules means the schedules of assets and liabilities, the list of Holders of Interests and the statements of financial affairs Filed by the Debtor on the Petition Date, as such schedules have been or may be further modified, amended or supplemented in accordance with Fed. R. Bankr.P. 1009 or orders of the Bankruptcy Court.
1.112. Solicitation Order means Order (A) Approving Plan Summary; (B) Establishing Procedures For Solicitation and Tabulation of Voting On Proposed Joint Chapter 11 Plan, Approving Ballots and Consumer Proof of Claim Form, Establishing Final Date to File Consumer Proofs of Claim and Establishing Voting Deadline to Accept Or Reject Plan; (C) Scheduling Hearing On Confirmation of Proposed Joint Chapter 11 Plan; and (D) Granting Certain Related Relief entered by the Bankruptcy Court on or about June 5, 2012.
1.113. State Attorneys Generals means the Attorney General for each of the 50 states and includes the attorney general, or similar government official or Person, with the authority to enforce consumer protection statutes on behalf of residents of any state, the District of Columbia, Puerto Rico and/or any United States Territory.
1.114. Subordinated Governmental Fines and Penalties Claims means Governmental Fines and Penalties Claims that are subordinated by the Plan in priority of Distribution to payment in full of all Allowed Trade Claims.
*539 1.115. Trade Claim means a Claim against the Debtor, other than an Unclassified Claim, a Consumer Claim, a Non-Tax Priority Claim, a WARN Litigation Claim, a WARN Litigation Class Exclusion Claim, a Mepco Claim, a Warrantech Claim, a Subordinated Governmental Fines and Penalties Claim, the Prestige Claims, or an Intercompany Claim.
1.116. Trade Creditor means the Holder of a Trade Claim.
1.117. Unclassified Claims means all Claims described in section 1123(a)(1) of the Bankruptcy Code.
1.118. Unimpaired means, when used in reference to a Claim or Interest, a Claim or Interest that is not Impaired.
1.119. USE Notice Website means the website at www.usfbankruptcy.com which will be used to post relevant documents necessary or helpful for Creditors and others interested in the Plan.
1.120. Vehicle Service Contract means a contract or agreement offered by the Debtor or one of the Affiliates (a) that contains a separately stated consideration for a specific duration to perform the repair, replacement or maintenance of a motor vehicle and includes vehicle protection products, commonly referred to as product warranties; or (b) that provides indemnification for repair, replacement or maintenance of a motor vehicle due to an operational or structural defect in materials, workmanship or normal wear and tear and may or may not include additional provision for incidental payment of indemnity under limited circumstances, including but not limited to towing, rental and emergency road service. The term “Vehicle Service Contract” shall also include any contract, agreement or certificate, including engine additive product warranties, whereby the Debtor agreed to refund to a Consumer the full amount of the purchase price that the Consumer paid for a Vehicle Service Contract if certain terms and conditions are met.
1.121. Voting Classes means Classes 2, 3, 5, 6, 7, and 8.
1.122. Voting Deadline means the date set by the Bankruptcy Court by which all Ballots to accept or reject the Plan in accordance with section 1126 of the Bankruptcy Code must be received by the appropriate Person.
1.123. Voting Trust Agreement means that certain Voting Trust Agreement dated July 30, 2010 by and between David A. Warfield and Darain E. Atkinson and Cory C. Atkinson.
1.124. Voting Trust Entities means Atkinson Group of Companies, Inc., Atkinson Construction, Inc., U.S. Fidelis Administration Services, Inc., AGI Administration Services, Inc., the Reinsurance Companies, DS Direct, Atkinson Realty, LLC, DC Atkinson Realty, LLC, Wentz-ville International Speedway, LLC, Crescent, Zing Advisors, LLC, and Exodus LLC.
1.125. WARN Litigation means the litigation commenced by Benjamin Mantle, Sharon Szymankski and others against the Debtor for alleged violations of the Worker Adjustment and Retraining Notification Act, which is pending as Adv. Proc. 10-4160 and similar litigation that was commenced in the U.S. District Court for the Eastern District of Missouri as Case No. lO-cv-00053.
1.126. WARN Litigation Class Claimants means the members of the class described in the WARN Litigation Class Settlement Order.
*540 1.127. WARN Litigation Class Counsel means The Gardner Firm, P.C., Lankenau & Miller, LLP and Pitzer Snodgrass P.C.
1.128. WARN Litigation Class Exclusion Claims means Claims held by former employees of the Debtor who voluntarily opted-out of the WARN Litigation class certified by the Bankruptcy Court.
1.129. WARN Litigation Class Settlement Order means that order entered by the Bankruptcy Court in the WARN Litigation approving the terms of a settlement of the WARN Litigation Claims by allowing for the payment by the Debtor in Cash on the Effective Date of the sum of $1,450,000.
1.130. Warrantech means collectively Vemeco, Inc., Warrantech Automotive, Inc., Warrantech Corporation, and Butler Financial Solutions, LLC.
1.131. Warrantech AVCs means the Assurance of Voluntary Compliance executed by Warrantech and the states of Texas, Missouri, Ohio and Washington. The Warrantech AVCs are incorporated herein by reference.
1.132. Warrantech Claims means all Claims held or asserted by Warrantech or any of the Persons comprising Warrantech against the Debtor, including but not limited to the Warrantech Proofs of Claim.
1.133. Warrantech — Mepco Subordination Litigation means litigation commenced by Warrantech against Mepco seeking inter alia the equitable subordination of the Mepco Claims, which litigation is pending in the Bankruptcy Court as Adv. Proc. No. 11-04313.
1.134. Warrantech’s Notice Reimbursement Obligations. Within five Business Days after approval of the Disclosure Statement, Warrantech shall pay to the Debtor Cash in the amount of $368,000 to be segregated and used by the Debtor to pay Noticing Costs. In the event that Noticing Costs are less than $368,000, the Debtor shall refund any remaining funds to Warrantech by no later than 30 days following the Effective Date the different between $368,000 and the actual amount of the Noticing Costs.
1.135. Warrantech Proofs of Claim means those proofs of claim, as amended, Filed by Vemeco, Inc., Warrantech Automotive, Inc., Warrantech Corporation, and Butler Financial Solutions, LLC on November 30, 2011, each of which is in the same amount, and which were denominated by the Bankruptcy Court as Claim Nos. 828 through 831 respectively.
1.136. Warrantech Released Parties means Warrantech and its subsidiaries, successors, predecessors, attorneys, employees, agents (except for agents who are Authorized Telemarketers), assigns, directors, officers and shareholders.
1.137. Warrantech Vehicle Service Contracts means any Vehicle Service Contract sold, marketed by or entered into by the Debtor under which Warrantech, or any of its subsidiaries or affiliates, is directly involved, as either a contracting party, an administrator for such contract, or an obligor of such contract.
Rules of Interpretation and Computation of Time. For purposes of the Plan, unless otherwise provided herein: (a) whenever from the context it is appropriate, each term, whether stated in the singular or the plural, will include both the singular and the plural; (b) any reference in the Plan to a contract, instrument, release or other agreement or document being in a particular form, or on particular terms and conditions means that such doc *541 ument will be substantially in such form or substantially on such terms and conditions; (c) any reference in the Plan to an existing document or schedule Filed or to be Filed means such document or schedule, as it may have been or may be amended, modified or supplemented pursuant to the Plan; (d) any reference to an Person as a Holder of a Claim or Interest includes that Person’s successors and assigns; (e) all references in the Plan to Sections, Articles and Schedules are references to Sections, Articles and Schedules of or to the Plan; (f) captions and headings to Articles and Sections are inserted for convenience of reference only and are not intended to be a part of or to affect the interpretation of the Plan; (g) subject to the provisions of any contract, certificates of incorporation, bylaws, instrument, release or other agreement or document entered into in connection with the Plan, the rights and obligations arising under the Plan shall be governed by, and construed and enforced in accordance with, federal law, including the Bankruptcy Code and Bankruptcy Rules; (h) the rules of construction set forth in section 102 of the Bankruptcy Code will apply; and (a) in computing any period of time prescribed or allowed by the Plan, the provisions of Bankruptcy Rule 9006(a) will apply.
ARTICLE II
COMPROMISE AND SETTLEMENT OF DISPUTES
2.1. Compromise, Settlement and Sale. Pursuant to sections 363, 364, 365, 1123(a)(5), and 1123(b)(3) of the Bankruptcy Code and Bankruptcy Rule 9019, the Plan incorporates, and is expressly contingent upon the approval of the compromise and settlement by and among the Debtor, the Creditors Committee, Mepco, Warran-tech, the WARN Litigation Class Claimants, the State Attorneys General Steering Committee, and the Atkinsons, all as set forth in the Global Settlement Agreement. The Global Settlement Agreement will be entered into and filed as part of the Plan Supplement and is incorporated into this Plan by reference as if fully set forth herein. The Global Settlement Agreement represents a full, final and complete compromise, settlement, and release of, among other matters, the issues in dispute among the parties thereto, including, among other issues, resolution of the Mepco Claims, the Warrantech Claims, the Committee-Mepco Subordination Litigation, the Warrantech-Mepco Subordination Litigation, and the Attorney General-Debtor Actions. Without limiting the foregoing, subsections (a) through (g) below describe certain of the principal provisions of the Global Settlement Agreement. In the event of any inconsistency between the Global Settlement Agreement, the Plan or the Confirmation Order, the documents shall control on the following order of priority: (i) Confirmation Order, (b) Global Settlement Agreement, and (c) Plan.
(a) Mepco.
(i) Treatment of Mepco’s Claim. On the Effective Date, (a) Mepco shall receive from Warrantech the sum of $4,800,000 in Cash; (b) Darain and Mia Atkinson and the Debtor shall transfer to Mepco all of their respective rights, title and interest in and to the Caymans House, free and clear of all Claims, Interests, encumbrances and other interests of any Person to the fullest extent permitted by applicable law, with all utilities, insurance and pre-paid expenses to be prorated through the Effective Date; (c) Mepco shall receive from the Debtor payment in full in Cash *542 of the Mepco Postpetition Claim; (d) Mepco shall receive from the Debtor payment in full in Cash of the Mepco Prepetition Secured Claim; (e) David Warfield, as the Voting Trustee, Darain E. Atkinson, Cory C. Atkinson and the Debtor shall, upon the request of Mepco, transfer to Mepco rights in the assets of DS Direct, U.S. Fidelis Administration Services, Inc., and Crescent (subject to Section 13.3(b)(i)(f)), including the ECHO Reserve Accounts; (f) Mepco shall receive funds in the ECHO Reserve Account, (g) intangible personal property of the Debtor (including trademarks, tradenames, copyrights, and customer lists), (h) Warrantech will dismiss with prejudice the Warrantech-Mepco Subordination Litigation; (i) the Committee will dismiss with prejudice the Committee-Mepco Subordination Litigation; O') the Debtor and the Liquidating Trustee shall forever relinquish any rights or interests in and to the ECHO Reserve Accounts and any funds that may be due to or on behalf of the Debt- or under the ECHO Settlement Order; and (k) Mepco will receive the full benefit of the Releases and injunctions described more fully in the Global Settlement Agreement and in Article XIII of the Plan. If available, Mepco shall also thereafter receive from the Liquidating Trust the Mepco Unsecured Claim Distribution and its share of the Later Monetized Asset Distribution.
(ii) Mepco’s Obligations. Within five Business Days after approval of the Disclosure Statement, Mepco shall satisfy the Mepco Notice Reimbursement Obligations. On the Effective Date, Mepco shall (a) forego any further Distributions from the Debtor, the Estate, or the Liquidating Trustee except for the Mepco Unsecured Claim Distribution and its share of the Later Monetized Asset Distribution, (b) relinquish any Claim, Lien, or interest in any of the Liquidating Trust Assets other than the Mepco Unsecured Claim Distribution and its share of the Later Monetized Asset Distribution, (c) relinquish any Claim, Lien, or interest in any of the Consumer Restitution Fund Assets; and (d) either release or transfer to Warrantech, at the option of Warrantech, all of Mepco’s right, title and interest in and to the assets of the Reinsurance Companies, free and clear of all Claims, Interests, encumbrances and other interests created by Mepco. Notwithstanding the foregoing, the Debtor shall not be obligated to transfer to Mepco any interest in DS Direct, U.S. Fidelis Administration Services, Inc. and Crescent until such time as the Debtor shall be satisfied that all taxes and other charges due from those entities to any Governmental Unit on account of any period prior to the transfer have been paid from the assets of such entities.
(b) Warrantech.
(i) Treatment of Warrantech’s Claims. On the Effective Date, (a) David Warfield, as the Voting Trustee, Darain E. Atkinson, Cory C. Atkinson and the Debtor shall transfer to War-rantech or an affiliate of Warrantech or release at the option of Warrantech all of their rights, title and interest in and to the Reinsurance Companies, or their assets free and clear of all Claims, Interests, encumbrances, and other interests of any Person, except any and all Claims, liens, encumbrances or rights held by CARRG (including its receiver) in the Reinsurance Companies or their assets shall not be affected by this transfer to Warrantech, (b) Mepco will *543 either release or transfer to Warrantech, at the option of Warrantech, all of Mep-co’s right, title and interest in and to the assets of the Reinsurance Companies, free and clear of all Claims, Interests, encumbrances and other interests created by Mepco, and (c) Warrantech will receive the full benefit of the Releases and injunctions described in the Global Settlement Agreement and in Article XIII of the Plan.
(ii) Warrantech’s Obligations. Within five Business Days after approval of the Disclosure Statement, Warran-tech shall satisfy the Warrantech Notice Reimbursement Obligations. On the Effective Date, Warrantech shall: (a) pay to Mepco the amount of $4,800,000 in Cash; (b) pay to the Liquidating Trustee the sum of $1,400,000 in Cash; (c) pay to the Consumer Restitution Fund the sum of $1,100,000 in Cash; (d) dismiss with prejudice the Mepco-War-rantech Subordination Litigation; and (e) withdraw with prejudice each of the Warrantech Proofs of Claim and forego any further Distributions from the Debt- or, the Estate, or the Liquidating Trustee. Notwithstanding the foregoing, the Debtor shall not be obligated to transfer to Warrantech any interest in the Reinsurance Companies until such time as the Debtor shall be satisfied that all taxes and other charges due from those entities to any Governmental Unit on account of any period prior to the transfer have been paid from the assets of such entities.
(c) Atkinsons. On the Effective Date, the Atkinsons shall receive the full benefit of the Releases and injunctions described in the Global Settlement Agreement and in Article XIII of the Plan, provided, however, that notwithstanding anything to the contrary contained in this Plan or any other Plan related document, neither Da-rain Atkinson nor Cory Atkinson shall be released of any liability on account of the claims brought by the State of Maryland, Consumer Protection Division in CPD Case No.: 10-016-188217, OAH OAG CPD 04-10-25886. On the Effective Date, the Debtor and the Estate shall be deemed to have complied fully with paragraph 15 of the Cory and Heather Atkinson Settlement Agreement and with paragraph 16 of the Darain and Mia Atkinson Settlement Agreement and the Atkinsons shall each irrevocably relinquish any further interest in any of the “Assets Proceeds Account” as that phrase is defined in each of the Cory and Heather Atkinson Settlement Agreement and in the Darain and Mia Atkinson Settlement Agreement. On the Effective Date, the Creditors Committee or Liquidating Trustee, as the case may be, shall cause the Committee-Atkinsons Litigation to be dismissed with prejudice.
(d) WARN Litigation Class Claims. On the Effective Date, and pursuant to the terms of the WARN Litigation Class Settlement Order, the Debtor shall pay to the WARN Litigation Class Counsel for the benefit of the WARN Litigation Class Claimants the sum of $1,450,000 in full satisfaction of all Claims asserted by the WARN Litigation Class Claimants. The funds so transferred shall be distributed to the WARN Litigation Class Counsel and to the WARN Litigation Class Claimants in accordance with the WARN Litigation Class Settlement Order. Upon receipt of said payment, the WARN Litigation Class Counsel shall cause the WARN Litigation to be dismissed with prejudice. The WARN Claimants shall also receive the full benefit of the Release by the Debtor, the Estate and the Trade Creditors and *544 injunctions described in the Global Settlement Agreement and in Section 13.15 of the Plan.
(e) Consumers. All Consumer Claims, (including the Individual Proofs of Claim) shall be channeled to the Consumer Restitution Fund established under this Plan which will be funded with a total of $14,100,000 as set forth herein. On the Effective Date, (i) the Debtor shall transfer $13,000,000 in Cash to the Consumer Restitution Fund and (ii) Warrantech shall transfer $1,100,000 in Cash to the Consumer Restitution Fund. The Consumer Restitution Fund shall also receive its share of the Later Monetized Asset Distribution and of the Malpractice Claim Distribution. The Consumer Restitution Fund shall pay Consumer Claims in the manner and hierarchy established under the Consumer Restitution Fund Agreement. In accordance with the Consumer Restitution Fund Agreement, the thirteen Litigating States shall receive reasonable compensation on the Effective Date immediately following funding of the Consumer Restitution Fund, or at a later date if requested by any Litigating State(s), for the pre-confirmation investigation of the Debtor, the pursuit of Consumer; Claims before the Bankruptcy Court and the litigation of unfair practice claims in an amount not to exceed 13.5% ($1,903,500) of the Consumer Restitution Fund’s initial assets. Accordingly, on the Effective Date, (a) all liabilities, obligations, and responsibilities related to all Consumer Claims shall be transferred to the Consumer Restitution Fund; (b) the Debtor, the Liquidating Trust, and the Liquidating Trustee shall have no further liability for payment of any/all liabilities or obligations for any Consumer Claims; (c) the Debtor shall agree to entry of the Litigating States-Debtor Consent Judgments; and (d) all Consumers and all States Attorneys General shall be bound by the Releases as described in Article XIII of the Plan.
(f) Trade Creditors. As soon as practicable after the Effective Date, Trade Creditors will receive from the Liquidating Trust Pro Rata Distributions of the Available Cash remaining after payment in full of (i) all Unclassified Claims, (ii) all Allowed Non-Tax Priority Claims, (iii) the Mepco Postpetition Claim, (iv) the Mepco Prepetition Secured Claim, (v) the amounts due under the WARN Litigation Class Settlement Order, and (vi) the Estate’s obligations to fund the Consumer Restitution Fund. Neither Mepco nor War-rantech will share in any Distributions due to Trade Creditors. Trade Creditors shall also receive the full benefit of the Releases and injunctions described in the Global Settlement Agreement and in Article XIII of the Plan. The Liquidating Trust shall also receive its share of the Malpractice Claim Distribution and the Later Monetized Asset Distribution.
(g) Releases and Injunctions Not Sev-erable. The Releases and injunctions provided in the Global Settlement Agreement and in Article XIII of the Plan are integral to obtaining the value provided under the Global Settlement Agreement and the Releases and injunctions under this Plan constitute an essential component of the compromise reached and, notwithstanding anything else to the contrary contained in this Plan, are not severable from the other provisions of this Plan unless the beneficiary of such releases or injunctions shall waive its rights under this Section.
ARTICLE III
ADMINISTRATIVE EXPENSES AND PRIORITY TAX CLAIMS
3.1. Administrative Claims. Each Allowed Administrative Claim (including *545 any Allowed Claims for Professional Fees) shall be paid in Cash in an amount equal to the unpaid portion of such Allowed Administrative Claim on the later of (a) the Effective Date, or as soon as reasonably practicable thereafter; (b) thirty (30) days after the date such Claim is Allowed or otherwise authorized by a Final Order; (c) the date that the Debtor is otherwise obligated to pay such Claim in accordance with the terms and provisions of the particular transactions giving rise to such Claim, the terms and provision of this Plan and any orders of the Bankruptcy Court relating thereto; and (d) such date as the Holder of such Claim and the Debtor prior to the Effective Date or the Liquidating Trustee after the Effective Date shall agree upon.
3.2. Priority Tax Claims. Commencing on the later of (a) the Effective Date and (b) the fifteenth Business Day of the first month following the month in which a Priority Tax Claim becomes an Allowed Priority Tax Claim, or as soon after such dates as is practicable, such Holder of an Allowed Priority Tax Claim shall receive from the Liquidating Trustee, Available Cash in an amount equal to such Allowed Priority Tax Claim.
ARTICLE IV
CLASSIFICATION OF CLAIMS AND INTERESTS
4.1. Classiñcation of Claims. Pursuant to section 1122 of the Bankruptcy Code, set forth below is a designation of classes of Claims against the Debtor and Equity Interests in the Debtor. A Claim or Interest is placed in a particular Class for the purposes of voting on this Plan and of receiving Distributions pursuant to this Plan only to the extent that such Claim or Interest is an Allowed Claim or an Allowed Interest in that Class and such Claim or Interest has not been paid, released, or otherwise settled prior to the Effective Date.
4.2. Unclassifíed Claims. In accordance with section 1123(a)(1) of the Bankruptcy Code, the Unclassified Claims have not been classified and their treatment is set forth in Article III above.
ARTICLE V
IDENTIFICATION OF CLASSES OF CLAIMS AND INTERESTS IMPAIRED AND UNIMPAIRED BY THE PLAN
5.1. Classes of Claims that are Unimpaired. The classification of Claims against the Debtor pursuant to this Plan that are Unimpaired and not entitled to vote on the Plan is as follows:
Class_Claim_Status_Voting R

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8495270. Public record. Not legal advice.