The travails of Jefferson County, Alabama are well known. Ordered by a federal court to upgrade its sewer system in the late 1990's, the project was marred by corruption, cost overruns and financing with complex derivatives that ultimately saddled the County with over $3 billion in debt. In addition, an occupational tax that provided the primary source of its unrestricted general fund revenues was invalidated, and the County faces both huge refund claims and operating revenue shortfalls. There is no dispute that Jefferson County is deeply insolvent, and there was little surprise when the County filed a petition under Chapter 9 of the Bankruptcy Code in early November in the Northern District of Alabama, commencing the largest municipal bankruptcy case in history.
For all of its problems, however, the County may not be eligible for Chapter 9 protection. The County's bankruptcy petition has been challenged and a colorable issue exists as to whether the County can satisfy the strict requirements which must be met in order for a municipality to use Chapter 9 to seek adjust its debts. Among other things, those requirements, set forth in Section 109(c) of the Bankruptcy Code, state that a municipal entity seeking to be a debtor under Chapter 9 must demonstrate that it "is specifically authorized . . . by State law . . . to be a debtor under such chapter." In Jefferson County's case, the question is whether the nature of its debt obligations fall within the parameters of the Alabama authorization statute, Alabama Code Section 11-81-3. As strange as it sounds, Jefferson County's staggering debt may not be the right kind of debt to enable it to utilize Chapter 9 of the Bankruptcy Code.
Read this article in its entirety at Kelley Drye & Warren LLP's Bankruptcy Law Insights blog.
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