MEMORANDUM (i) DENYING CERTIFICATION FOR IMMEDIATE APPEAL TO THE THIRD CIRCUIT AND (ii) GRANTING STAY PENDING APPEAL (UPON POSTING OF BOND)2

KEVIN J. CAREY, Bankruptcy Judge.

On July 23, 2012, an order was entered confirming the Fourth Amended Plan Joint Plan of Reorganization for Tribune Company and Its Subsidiaries Proposed by The Debtors, The Official Committee of Unsecured Creditors, Oaktree Capital Management, L.P., Angelo Gordon & Co, L.P. and JPMorgan Chase Bank, N.A. (docket no. 12074) (the "Confirmation Order").3 The Confirmation Order was entered after a series of decisions addressing a myriad of issues related to the DCL Plan Proponents' efforts to achieve confirmation of a plan of reorganization, including:

Various parties filed appeals of the quartet of confirmation-related decisions and the Confirmation Order.4 Currently before the Court are motions seeking certification for direct appeal of certain issues to the United States Court of Appeals for the Third Circuit pursuant to 28 U.S.C. § 158(d)(2), and motions seeking a stay pending appeal pursuant to Fed. R.Bankr.P. 8005; more particularly:

A scheduling order regarding the foregoing motions was entered on August 1, 2012 (docket no. 12147). The DCL Plan Proponents filed an Objection to the Motions for an Order Certifying Direct Appeal of the Confirmation Order (docket no. 12216) (the "DCL Objection to Certification") and an Objection to the Motions for a Stay Pending Appeal of the Confirmation Order (docket no. 12217) (the "DCL Objection to Stay"). A hearing to consider the Certification Motions and the Stay Motions was held on August 17, 2012 (the "Stay Hearing").

For the reasons set forth herein, the Certification Motions will be denied and the Stay Motions will be granted, conditioned upon the posting of a supersedeas bond in the amount of $1.5 billion.

DISCUSSION

I. The Certification Motions

28 U.S.C. § 158(d)(2)(A) provides that a bankruptcy court may certify a final order for immediate appeal to a federal court of appeals if it determines that:

28 U.S.C. § 158(d)(2)(A). See also In re Nortel Networks Corp., 2010 WL 1172642, *1 (Bankr.D.Del. March 18, 2010). Section 158(d)(2)(B) provides that certification to the court of appeals is mandatory if the bankruptcy court determines that circumstances specified in (i), (ii) or (iii) of subparagraph (A) exists. 28 U.S.C. § 158(d)(2)(B).

A. The Law Debenture Certification Motion

Law Debenture and Deutsche Bank (together, the "Indenture Trustees") request certification for direct appeal of two issues:

Law Debenture Certification Motion, ¶ 21. The Indenture Trustees argue that immediate appeal of the foregoing issues is appropriate under both (i) and (iii) of 28 U.S.C. § 158(d)(2)(A).

Controlling Law

The Indenture Trustees argue that certification of the Unfair Discrimination Issue is required because there is no controlling law regarding the statutory interpretation of either the "notwithstanding section 510(a)" or the "not discriminate unfairly" language in 11 U.S.C. § 1129(b)(1).6

In the Allocation Decision, my analysis of the statute's language "notwithstanding section 510(a)" was informed by the Third Circuit Court of Appeals' decision in In re Goody's Family Clothing, Inc., 610 F.3d 812, 817 (3d Cir.2010), which interpreted the meaning of "notwithstanding" as it appears in Bankruptcy Code § 365(d)(3). Tribune III, 472 B.R. at 241. The Indenture Trustees argue that Goody's is not controlling law, since it interprets "notwithstanding" in the context of a different Bankruptcy Code section. The United States Supreme Court has noted that "[p]resumptively, identical words used in different parts of the same act are intended to have the same meaning." U.S. Nat'l Bank of Oregon v. Indep. Ins. Agents of America, Inc., 508 U.S. 439, 460, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993) (citations and internal punctuation omitted).

The Indenture Trustees further argue that any presumption of similar meaning of the word "notwithstanding" in separate Bankruptcy Code sections is rebutted by the legislative history of Section 1129(b)(1), which includes a discussion of a plan's treatment of senior debt and junior debt to illustrate examples of unfair discrimination. See Tribune III, 472 B.R. at 239 citing Vol. C Collier On Bankruptcy App. Pt. 4(d)(i) at 416-418 (15th ed. rev.) (legislative history of § 1129(b)(1)). In the Allocation Decision, I determined that the legislative history of § 1129(b)(1), which has been described as "roundabout, almost otiose," was not determinative of this issue. Id. There is controlling precedent for reliance on unambiguous statutory language, rather than the legislative history, in both the United States Supreme Court (Exxon Mobil Corp. v. Allapattah Serv., Inc., 545 U.S. 546, 568, 125 S.Ct. 2611, 2626, 162 L.Ed.2d 502 (2005) ("As we have repeatedly held, the authoritative statement is the statutory text, not the legislative history or any other extrinsic material")) and, more recently, in the Third Circuit (In re Federal-Mogul Global, Inc., 684 F.3d 355, 374 (3d Cir.2012) (deciding that pre-Code bankruptcy practice and legislative history "is too equivocal to overcome the plain meaning of the text")).7

The Indenture Trustees also argue that there is no controlling law regarding the statutory interpretation of § 1129(b)(1)'s "not discriminate unfairly" language. More particularly, the Indenture Trustees contend that the Bankruptcy Court erred in measuring the materiality of the alleged discrimination. The Indenture Trustees argue that no Third Circuit or Supreme Court cases have addressed the issue of how to measure materiality, especially when certain creditors are entitled to the benefits of a subordination agreement.

The Indenture Trustees argue that this Court wrongfully determined that the DCL Plan did not discriminate unfairly against the Senior Noteholders by disputing the Court's method of applying the facts, including stipulated calculations of potential recovery scenarios under the DCL Plan, to measure whether the DCL Plan's treatment of Senior Noteholders resulted in a materially lower percentage recovery. See Tribune III, 472 B.R. at 242-43. This part of the Unfair Discrimination Issue is fact-intensive. The Second Circuit has noted:

Weber v. United States Trustee, 484 F.3d 154, 158 (2d Cir.2007). The issue concerning how this Court measured materiality is not a pure legal issue; it is not appropriate for direct appeal. American Home Mortg. Inv. Corp. v. Lehman Bros., Inc. (In re American Home Mortg. Inv. Corp.), 408 B.R. 42, 43-44 (D.Del.2009) (deciding that mixed questions that implicate the particular circumstances of the case are not pure legal questions warranting direct certification), Bepco LP v. Globalsantafe Corp. (In re 15375 Memorial Corp.), 2008 WL 2698678, *1 (D.Del. July 3, 2007) (deciding that "factual issues preclude a direct appeal" under 28 U.S.C. § 158(d)(2)).

The Indenture Trustees also argue that the SWAP Claim Issue is a pure legal issue requiring interpretation of the PHONES Indenture to determine if the SWAP Claim is falls within the definition of "Senior Indebtedness." Article 1.12 of the PHONES Indenture provides that the Indenture "shall be governed by and construed in accordance with the laws of the State of Illinois except as may be otherwise required by mandatory provisions of law." Tribune II, 464 B.R. at 215. Interpretation of the PHONES Indenture requires application of state law and is not appropriate for direct appeal to the Third Circuit. 15375 Memorial, 2008 WL 2698678, at *1.

Public Importance

The Indenture Trustees also argue that the Unfair Discrimination Issue should be certified for direct appeal under § 158(d)(2)(i) because it is an issue of public importance. Specifically, it argues that enforcement of third-party contractual subordination rights is a matter of concern to the public markets. To constitute an issue of "public importance," the issue on appeal must transcend "the litigants and involve a legal question, the resolution of which will advance the cause of jurisprudence to a degree that is usually not the case." American Home Mortg., 408 B.R. at 44 citing 1 Collier on Bankruptcy 5.05(A) (15th ed. rev.). Despite the Indenture Trustees' insistence on the impact of the Unfair Discrimination Issue, I cannot agree that the issue will have any such repercussions. As discussed above, my interpretation of the word "notwithstanding" is in accord with controlling law in the Third Circuit and the remainder of the Unfair Discrimination Issue involves factual issues specific to this case.

Advancing the Case

Finally, the Indenture Trustees also argue that certifying a direct appeal will materially advance the Debtors' cases by providing all parties in interest, including the appellants, with the finality they "deserve" on the Unfair Discrimination Issue. As discussed by the Weber Court, the Indenture Trustees contend that allowing a direct appeal would be helpful since parties adversely affected by the Bankruptcy Court's decision on the Unfair Discrimination Issue might very well "fold up their tents if convinced that the ruling has the approval of the court of appeals, but will not give up until that becomes clear." Weber, 484 F.3d at 158. However, due to the number of appeals of the Confirmation Order involving various issues, a final decision on the Unfair Discrimination Issue is not likely to materially advance this case because there are still a number of issues on appeal challenging confirmation of the DCL Plan.

B. The EGI Certification Motion

EGI requests certification of a direct appeal of the issue of whether the Bankruptcy Court erred in confirming the DCL Plan because the DCL Plan improperly subordinates EGI's claims to distributions from chapter 5 avoidance actions and other third party recoveries. EGI argues that certification is required pursuant to § 158(d)(2)(A)(ii) and (iii) because this issue involves a question of law requiring resolution of conflicting Third Circuit decisions and resolution of the issue will materially advance the case.

"Conflicting" Decisions

In the 2011 Confirmation Decision, citing to Off'l Comm. Of Unsecured Creditors of Cybergenics Corp. v. Scott Chinery (In re Cybergenics Corp.), 226 F.3d 237, 245 (3d Cir.2000), I decided that certain chapter 5 avoidance assets were not assets of the debtor and, therefore, were not subject to subordination provisions that applied to "assets of the Company." Tribune I, 464 B.R. at 200. See also Tribune II, 464 B.R. at 213-14 (defining the "Subordination Determination"). However, upon reconsideration and further review of the meaning of the phrase "[u]pon distribution of the assets of the Company" in light of applicable state law and the entirety of the PHONES Indenture, I determined that the phrase "assets of the Company" must be read broadly and amended the 2011 Confirmation Opinion to strike the Subordination Determination. Tribune II, 464 B.R. at 213-21. In the Allocation Decision, I determined that the same reasoning, along with the Third Circuit decision in In re PWS Holding Corp., 303 F.3d 308 (3d Cir.2002), rendered the subordination provisions of the EGI Subordination Agreement applicable to chapter 5 causes of action. Tribune III, 472 B.R. at 251-56.

EGI argues that the Subordination Determination in the 2011 Confirmation Decision, which was struck in the Reconsideration Decision, and the determinations in the Allocation Decision, demonstrate that the Third Circuit must resolve the conflict between Cybergenics and PWS. However, as discussed in the Allocation Decision, the PWS Court explained that its opinion does not conflict with Cybergenics. PWS, 303 F.3d at 315.8 See also Tribune III, 472 B.R. at 253-54. In the Allocation Decisions, I decided that PWS applied to this case because the Debtors have proposed a plan that exercised their power to resolve, or to pursue through the Litigation Trust, potential fraudulent transfer claims on behalf of creditors under Bankruptcy Code § 544(b) and § 548.

Mandatory certification is not appropriate because Cybergenics and PWS are not in conflict.

Advancing the Case

EGI further argues that certification will materially advance this case since it would be far more efficient for the Third Circuit to resolve the subordination issues raised in EGI's appeal and the Indenture Trustees' appeal simultaneously. Because I have already determined that the Indenture Trustees' issues are not entitled to certification for direct appeal, this argument has no merit.

For the reasons set forth above, Law Debenture's Certification Motion and EGI's Certification Motion will be denied.

II. The Stay Motions

Aurelius and the Indenture Trustees (the "Movants") request that this Court enter a stay to prevent the Debtors from consummating the DCL Plan until final resolution of their appeals. In their reply papers, the Movants modified their request, asking that the stay preventing consummation of the DCL Plan be issued for a period of 180 days, with no supersedeas bond, subject to the right to request an extension of the stay from the appropriate court. Bankruptcy Rule 8005 ("Stay Pending Appeal") provides, in pertinent part, that:

Fed.R.Bankr.P. 8005. In determining whether to grant a stay pending appeal, courts should consider:

(1) whether the stay applicant has made a strong showing that the applicant is likely to succeed on the merits;

(2) whether the applicant will be irreparably injured absent a stay;

(3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and

(4) where the public interest lies.

Fox Sports Net West 2, LLC v. Los Angeles Dodgers, LLC (In re Los Angeles Dodgers, LLC), 465 B.R. 18, 28 (D.Del. 2011) citing Republic of Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 658 (3d Cir.1991). See also In re W.R. Grace & Co., 475 B.R. 34 (D.Del.2012).

When considering the above factors in a preliminary injunction case, the Delaware District Court discussed that "equal weight for each factor is not required since, the formula cannot be reduced to a set of rigid rules." Honeywell Int'l, Inc. v. Universal Avionics Sys. Corp., 397 F.Supp.2d 537, 548 (D.Del.2005). Thus, the analysis is flexible.9

A Strong Showing of Success on the Merits

Here, both Aurelius and the Indenture Trustees spend many pages in the Stay Motions discussing why this Court wrongly decided the issues now on appeal.10 Although I am satisfied that I have thoroughly — and correctly — examined and determined the disputed issues in the 2011 Confirmation Opinion, the Reconsideration Decision, the Allocation Decision and the Fourth Amended Plan Decision, the Movants have made an adequate showing of likelihood of success on the merits with respect to the issues on appeal to require analysis of the remaining Rule 8005 factors.

The Public Interest

The "public interest" factor does not favor either side. As stated in the Adelphia decision:

ACC Bondholder Group v. Adelphia Commc'n Corp. (In re Adelphia Commc'n Corp.), 361 B.R. 337, 367-68 (S.D.N.Y. 2007) (footnote omitted). The same reasoning with respect to the public interest applies here.

Irreparable Harm to the Movants

Under the circumstances before me, the key exercise is the balancing of any irreparable harm to the Movants with any substantial injury to the non-moving parties.

Irreparable harm is an injury that cannot be redressed by a legal or equitable remedy following a trial. Los Angeles Dodgers, 465 B.R. at 34 citing Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck Consumer Pharms. Co., 290 F.3d 578, 595 (3d Cir.2002). In the Dodgers case, the Court determined that the movants would suffer irreparable harm if the stay were not granted due to the movants' loss of "unique sport-related marketing or media opportunities" and "being forced to negotiate with less leverage than it contracted for." Los Angeles Dodgers, 465 B.R. at 35-36. Further, to establish irreparable harm, a movant must demonstrate an injury that is neither remote nor speculative, but actual and imminent. W.R. Grace, 475 B.R. at 206.

The Senior Noteholders argue they will suffer irreparable harm if a stay is not granted because (i) if the Debtors are able to effectuate the DCL Plan and distribute estate assets prior to the adjudication of the appeal, it is possible that those estate assets (which the Movants argue belong to non-LBO creditors or are subject to subordination agreements) will be difficult to recover, and (ii) once distributions are made, the DCL Plan Proponents will move to dismiss the appeals as "equitably moot."11

Some courts have determined that a distribution of funds to diverse parties may constitute irreparable harm because once a distribution is made, funds may be difficult or impossible to recover. See Rubin v. Pringle (In re Focus Media, Inc.), 387 F.3d 1077, 1086 (9th Cir.2004) (holding that bankruptcy court did not abuse its discretion by granting a preliminary injunction where the "specter" of irreparable harm existed if funds were dissipated), Adelphia, 361 B.R. at 351 ("Once the distribution are made pursuant to the Plan, it will become impracticable to ever fashion effective relief for the Appellants."), In re Netia Holdings, S.A., 278 B.R. 344, 357 (Bankr.S.D.N.Y.2002) (finding balance of hardships weighed in favor of granting a preliminary injunction and stating that "if the funds leave State Street, they will be distributed to diverse parties and be difficult or impossible to recover. This is of course a concrete example exemplifying the well established principle that piecemeal distribution of the debtor's estate constitutes irreparable harm.").

Aurelius and the Indenture Trustees also argue that they may be irreparably harmed if their appeals may become "equitably moot" under Third Circuit law. Courts have held that this harm, alone, is not sufficient to justify a stay pending appeal. Los Angeles Dodgers, 465 B.R. at 36 citing Schroeder v. New Century Liq. Trust (In re New Century TRS Holdings, Inc.), 2009 WL 1833875, at *2 (D.Del. June 26, 2009).

Recently, in In re Philadelphia Newspapers, LLC, 2012 WL 3038578 (3d Cir. July 26, 2012), Judge Ambro, writing for a unanimous panel, noted that equitable mootness is an "uncommon act" in which "a court dismisses an appeal even if it has jurisdiction and can grant relief if `implementation of that relief would be inequitable.'" Philadelphia Newspapers, 2012 WL 3038578, at *3 citing In re Continental Airlines, 91 F.3d 553, 559 (3d Cir.1996) (Continental I). Judge Ambro further explained:

Philadelphia Newspapers, 2012 WL 3038578, at *3. The "prudential" factors considered in evaluating equitable mootness are:

(1) whether the reorganization plan has been substantially consummated,

(2) whether a stay has been obtained,

(3) whether the relief requested would affect the rights of parties not before the court,

(4) whether the relief requested would affect the success of the plan, and

(5) the public policy of affording finality to bankruptcy judgments.

Id. The Philadelphia Newspapers Court decided that, after consideration of these factors, a court should apply the equitable mootness doctrine if ordering relief would require the unscrambling of complex bankruptcy reorganizations. Id. at *5.

Here, there is a strong possibility that the Movants will be irreparably harmed if the Debtors are able to effectuate the DCL Plan prior to adjudication of the appeals. On or after the effective date, the Debtors will obtain a $1.1 billion new term loan for use, in part, in making distributions of debt, will distribute cash of approximately $1.9 billion, as well as common stock or warrants, to thousands of creditors. It will certainly be difficult to "unscramble the egg" if the DCL Plan is allowed to go effective, since it is unlikely that the distributions could be recovered, or, if recoverable, would be challenging and costly.12

Substantial Injury to Non-Moving Parties

Finally, in determining whether to grant a stay during the appeal, I must consider whether a stay would cause substantial injury to non-moving parties with an interest in the proceeding. The Movants argue that a stay maintaining the status quo would not harm the non-moving parties because this bankruptcy case has already been pending for four years and, over the course of the bankruptcy, the Debtors' enterprise value has increased.

Not surprisingly, the DCL Plan Proponents contend that a stay would substantially harm them and "thousands of non-moving creditors, employees, customers and other stakeholders." They argue that any stay must be conditioned upon the posting of a bond to protect them from such injury. I cannot agree with the Movants' counterintuitive assertion that continued confinement in chapter 11 will be beneficial to the company, the DCL Plan Proponents or other non-moving creditors. Instead, to protect the non-moving parties from the substantial harm (which is described in the next section), a stay will be conditioned upon the posting of a bond.

The Bond Requirement

The DLC Plan Proponents assert that if a stay pending appeal is imposed, the Court should require the posting of a bond by the Movants to protect the non-moving parties against the risk of serious potential harm. I agree. As discussed in Adelphia:

Adelphia, 361 B.R. at 350 (citations omitted).13

At the Stay Hearing, the DCL Plan Proponents offered the testimony of Eddy W. Hartenstein, Tribune Company's (the "Company") President and Chief Executive Officer. Mr. Hartenstein testified that, while difficult to quantify, five distinct types of harms would befall the Company upon imposition of a stay:

The DCL Plan Proponents also offered the expert testimony of David S. Kurtz, Vice Chairman of Investment Banking and Head of the Global Restructuring Group at Lazard, Ltd., the Debtors' investment banker and financial advisor. Mr. Kurtz assumed that the course of appeal would take two years.15 The DCL Plan Proponents offer three methodologies for calculating a bond amount:

First, full protection from potential harms would require a bond in the amount of $4,515 billion, the Debtors' approximate equity value upon emergence. (This excludes allocations to the Senior Noteholders.)

Second, a bond could properly be set in the amount of $3 billion or more, representing the sum of the difference between (i) the already determined distributable enterprise value $7,019 billion, and (ii) the estimate of the Debtors' liquidation value ($3.3 to $3.8 billion), plus estimated administrative, legal and related costs during any stay and completion of the liquidation.

Third, and the method pressed hardest by the DCL Plan Proponents, calls for a bond in the amount of at least $1,548 billion, calculated as follows:16

The Movants protest that if the potential harms identified by the DCL Plan Proponents here warrant the posting of a bond, every appeal of a confirmation order would as well. The DCL Plan Proponents respond that:

DCL Objection to Stay, at 31-32.

The Debtors are an enterprise previously valued at over $7 billion with two major operating divisions: (1) publishing, which includes eight major market daily newspapers plus other publications, and (2) broadcasting, which includes 23 television stations in 19 markets, plus cable operations and radio stations. This particular industry continues to exist in a volatile state. I am convinced that the Movants should be required to post a bond as a condition of receiving a stay pending appeal. That leaves, then, the task of quantifying the potential harm for the purpose of fixing the amount of a bond. I look first at the five-part third alternative offered by the DCL Plan Proponents.

1. Incremental costs during a stay

Kurtz testified that the incremental costs of a stay pending appeal was calculated based upon an analysis of the average monthly administrative costs from August through October, 2011 (a period he said to be one "during the lowest point of the bankruptcy case." (Tr. 8/17/12 at 96)), or about $4.7 million per month for a total of $113 million. This activity would encompass:

Tr. 8/17/12 at 95-104.

In addition, this Court's experience with cases that are consigned for an extended period to that no-man's land — a time and place between the date of confirmation and the plan effective date — is that this period is rife with uncertainty, sometimes causing parties to seek court guidance and relief on matters that would otherwise be unnecessary.

2. Lost opportunity costs from delay in reinvesting distributable cash

Under the DCL Plan, approximately $1.9 billion is to be distributed to non-movants after the Effective Date. Kurtz testified that the lost opportunity costs here are estimated by determining the difference between investment income currently generated by the Debtors with cash on hand and anticipated rates of return that could reasonably be earned by non-moving creditors during the stay period, which Kurtz calculated "conservatively" at 6.896% based upon the Merrill Lunch U.S. High Yield Master II Index, a rate "commonly used" to analyze the high yield market. (The Movants offered no credible evidence of their own about the appropriate rate of return.)

The non-moving creditors could earn $272 million, while the funds sitting in the Debtors' hands, could earn only $383,000, due to investment restrictions imposed by Bankruptcy Code § 345. See Tr. 8/17/12 at 107-14.

3. Lost opportunity costs from delay in reinvesting free cash flow

Kurtz also testified that the Debtors expected to generate free cash flow after emerging from chapter 11, half of which would be used to pay debt and half of which could be distributed to the Company's new equity holders (primarily the Senior Lenders). Using the same assumptions as above, two years of aggregate free cash flow of about $272 million reinvested at a rate of 6.896% yields a $14 million result. See Tr. 8/17/12 at 115-16.

4. Potential harm from delay in debt refinancing

Under the DCL Plan, the Debtors plan to obtain a post-emergence $1.1 billion new senior term loan. Some creditors are to receive their distribution in the form of a "strip," which consists of a combination of cash, stock and debt. Assuming the debt component would trade at par and that such debt could be sold for cash and again assuming an investment rate of return at 6.896%, the lost return by non-moving creditors on distributed debt ($1,095 billion) would be $156 million. See Tr. 8/17/12 at 116-17.

5. Downside market risk

I understand that the "equity put option" price is an attempt to quantify, in a principled way, the specific and identifiable, but arguably elusive, market risks and volatility described by Messrs. Hartenstein and Kurtz in their testimony. At the Stay Hearing, the Movants attacked the soundness of this "downside market risk" assessment designed to protect against the potential decline in equity value during the course of appeals. Tr. 8/17/12 at 117-31. While this concept, employing the Black-Scholes method used typically to value options, is intriguing, I am disinclined to apply this methodology, never adopted by any court under these circumstances, and now advocated in a contested matter to which the Fed. R.Civ.P. 26(a)(2) requirements do not apply.9

The sum of the first four components of this five-part alternative is $555 million, yet I am unconvinced that this would suffice to protect fully against harm to the non-moving creditors during the period of any stay. Benefits potentially lost by the company's creditors upon an extended appeal include: the right to receive a controlling share of stock of the reorganized debtor, including board designation rights, the right to trade their equity in a more favorable post-emergence market or to share in increased equity value. I also credit Mr. Hartenstein's reasoning concerning brand erosion, lost strategic opportunities and difficulties in recruiting and retaining talent as real components of potential harm from the imposition of a stay pending appeal.

I conclude on this record, and with knowledge gained during the contentious administration of this case,10 that Mr. Hartenstein's concerns are warranted. The downside market risk described by Mr. Kurtz is real and the non-moving parties are entitled to protection from it during the course of the appeals. But the Court is unable to quantify definitively this last component of harm (downside market risk) for purposes of fixing a bond amount. I am compelled, therefore, to turn back and examine the other two methodologies suggested by the DCL Plan Proponents to determine the bond amount necessary to protect the non-moving parties from harm: post-emergence equity value ($4,515 billion) and the difference between reorganization and liquidation value ($3 billion plus).11 I conclude that either of these alternative amounts, under these circumstances, and on this record, could serve as reasonable and justifiable bases for fixing the appropriate amount of a supersedeas bond. However, the DCL Plan Proponents main thrust is in support of the scenario for a $1,548 billion bond. Therefore, I will limit the amount of a bond to the sum advanced most vigorously by the DCL Plan Proponents: $1.5 billion ("[A]pproximately 22 percent of the amount at risk ..." Tr. 8/17/12 at 134).

The District Court in Adelphia described well the "classic clash of competing interests" to be reconciled in determining whether to grant a stay pending appeal:

Adelphia, 361 B.R. at 342 (footnote omitted). The result I reach in the matter before me achieves the appropriate balance between these two legitimate, competing interests.

Accordingly, for the reasons set forth above, the Movants' request for a stay pending appeal will be granted, conditioned upon the posting of a supersedeas bond in the amount of $1.5 billion. The Movants are ordered to post the required supersedeas bond in the amount of $1.5 billion in cash or bond or a combination thereof by the close of business on August 29, 2012, and certify the same to this Court.

An appropriate order follows.

ORDER (i) DENYING CERTIFICATION FOR IMMEDIATE APPEAL TO THE THIRD CIRCUIT AND (ii) GRANTING STAY PENDING APPEAL (UPON POSTING OF BOND)

AND NOW, this 22nd day of August, 2012, upon consideration of

and any joinders, objections, and replies thereto, and after a hearing on August 17, 2012, and for the reasons set forth in the foregoing Memorandum, it is hereby ORDERED that: