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statement is approved and distributed, however, it may not be a violation of this provision to solicit support for another plan.7
Votes improperly solicited may be disregarded pursuant to § 1126(e).8 The purchase of claims to vote them against a plan is not per se bad faith9 nor will the purchaser necessarily in every case be compelled to explain its conduct, but if there is evidence the purchaser votes such claims without regard to the treatment of the claims an evidentiary hearing regarding the motives and potential collateral benefits to the purchaser may be required.10 A conflict of interest vis a vis other creditors in the same class may be grounds for designation and disqualification of the vote.11
Ballots for acceptances or rejections must conform to the appropriate Official Form, currently Form 14. Rule 3018(c). If multiple plans are submitted, the ballot must provide for creditors to indicate their preference between the plans, even if they vote for both of them. Id. Official Form 14 suggests that ballots can be returned to the place designated by the plan proponent, such as its attorney, rather than filed with the court.
Voting is not required by unimpaired classes, which are conclusively presumed to have accepted the plan. § 1126(f). Nor is voting required of classes that are not entitled to receive any property under the plan, which are deemed not to have accepted. § 1126(g).
Acceptance by a class of creditors requires two thirds in amount and more than one-half in number of the allowed claims actually voting. § 1126(c). A failure to vote should not be deemed an acceptance.12 Disputed claims that have neither been allowed, or temporarily
7
Century Glove v. First American Bank of New York, 860 F.2d 94 (3d Cir. 1988).
8
In re Texaco, Inc., 81 B.R. 813, 816 (Bankr. S.D.N.Y. 1988).
9 In re Figter Limited, 118 F.3d 635 (9th Cir. 1997); 225 Park Plaza Assoc. Ltd. Partnership v. Connecticut General Life Ins. Co., 100 F.3d 1214 (6th Cir. 1996)(dictum). See also Mabey v. Southwestern Elec. Power Co. (In re Cajun Elec. Power Coop., Inc.), 150 F.3d 503 (5th Cir. 1998)(payments by plan proponent were not improper buying of votes, especially when estate funds were not used, payments were disclosed and approved by the court); In re Lehigh Valley Prof'l Sports Clubs, Inc., 2001 Bankr. LEXIS 1230 (Bankr. E.D. Pa. 2001).
10
In re Dune Deck Owners Corp., 175 B.R. 839 (Bankr. S.D.N.Y. 1995). See also In re Landing Associates, Ltd., 157 B.R. 791 (Bankr. W.D. Tex. 1993).
11
Dune Deck, supra, n.13.
12
In re M. Long Arabians, 103 B.R. 211 (9th Cir. BAP 1989); In re Higgins Slacks Company, 178
B.R. 853 (Bankr. N.D. Ala. 1995); In re Townco Realty, Inc., 81 B.R. 707 (Bankr. S.D. Fla. 1987). Contra, In re Ruti-Sweetwater, Inc., 836 F.2d 1263 (10th Cir. 1988).
2
