Confirmed Bankruptcy Plan Supersedes Applicable FINRA Rules

(Excerpt)In the United States, the Financial Industry Regulatory Authority (“FINRA”) is authorized by the SEC to adopt and administer the Uniform Practice Code (“UPC”), the rules governing secondary market securities transactions. UPC Rule 1140 determines which unitholders are entitled to a distribution by setting a record date and an ex-date. The record date is the date fixed by the issuer for the purpose of determining which holders of securities are entitled to receive dividends or other distributions. A debtor can also set a record date in their bankruptcy plan. The ex-date is set by FINRA and is “the date on and after which the security is traded without a specific dividend or distribution.”This memorandum explores the conflict between bankruptcy plans and other applicable law. Part I discusses the res judicata effect of confirmed bankruptcy plans. Part II examines the “harmonizing approach” that has been used, and Part III explores a bankruptcy court’s rejection of the harmony approach in In re Arctic Glacier.