Issue link: https://mbozikis.ufcontent.com/i/1422521
156 A class of claims entitled to vote on a plan is deemed to accept a plan if creditors holding at least two-thirds in amount and more than one-half in number of the allowed claims in such class that voted on the plan have voted to accept the plan. 11 U.S.C. § 1126(c). A class of interests entitled to vote on a plan is deemed to accept a plan if holders of at least two-thirds in amount of the allowed interests in such class that voted on the plan have voted to accept the plan. 11 U.S.C. § 1126(d). In determining whether a class accepts or rejects the plan, a court, upon request of a party in interest and after notice and a hearing, may disqualify any acceptance or rejection that was not made in good faith or that was not solicited in good faith or in accordance with the provisions of the Bankruptcy Code. 11 U.S.C. § 1126(e). If a vote is so designated, it is excluded from the calculations made pursuant to Sections 1126(c) and (d) of the Bankruptcy Code. Because Section 1126(e) does not provide any guidance regarding what constitutes a lack of good faith, the question of whether a vote was made in good faith has been decided on a case by case basis. See, e.g., In re DBSD N. Am., Inc., 421 B.R. 133 (Bankr. S.D.N.Y. 2009), aff'd, 2010 WL 1223109 (S.D.N.Y. Mar. 24, 2010), aff'd in part and rev'd in part, DISH Network Corp. v. DBSD N. Am., Inc. (In re DBSD N. Am., Inc.), 634 F.3d 79 (2d Cir. 2011); In re Circus & Eldorado Joint Venture, No. 12- 51156 2012 WL 3042674 (Bankr. D. Nev. Sept. 20, 2012). The courts have determined that this lack of good faith includes attempts by a creditor to "extract or extort a personal advantage not available to other creditors in [its] class, or . . . where a creditor acts in furtherance of an ulterior motive, unrelated to its claims or its interests as a creditor." In re DBSD N. Am., Inc., 421 B.R. at 138. Specific situations which courts have identified as warranting designation of votes include where the creditor, by its actions, seeks to "(1) assume control of the debtor; (2) put the debtor out of business or otherwise gain a competitive advantage; (3) destroy the debtor out of pure malice; or (4) obtain benefits available under a private agreement with a third party which depends on the debtor's failure to reorganize." Id.