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Second Circuit Reverses Marblegate Decision

Trust Indenture Act Section 316(b) Limited to Actual Amendments to An Indenture’s Core Terms - Seyfarth Synopsis: On January 17, 2017, in a 2-1 decision in Marblegate Asset Management, LLC v. Education Management Finance...more

Second Circuit Court of Appeals Overturns District Court Decision in Marblegate Regarding Section 316(b) of Trust Indenture Act

On January 17, 2017, the US Court of Appeals for the Second Circuit ruled in favor of the defendant in Marblegate Asset Management, LLC v. Education Management Finance Corp., by vacating the decision of the District Court for...more

Mission Accomplished … First Circuit Bankruptcy Appellate Panel Acknowledges Post-Rejection Rights of Licensee of Trademarks

The Bankruptcy Appellate Panel (“BAP”) for the First Circuit recently upheld a licensee’s rights to use a debtor’s trademarks and logo after a rejection by the debtor of the underlying licensing and distribution agreement....more

Do Outsiders Have Standing?

One of the essential elements of a contract is the consent of the parties. Cal. Civ. Code § 1550(2). When a party is not a corporation, there is always a question of whether the person or persons signing the contract have...more

US Lenders - Missing Parenthesis Could Cost You a Bundle

As the case of NNN Realty shows, years of litigation and legal costs could be avoided with proper use of punctuation marks. A lender made a secured real estate loan to several entities who owned the real estate as tenants in...more

First Circuit BAP Protects Trademark Licensees In Bankruptcy Despite Section 365(n)

The First Circuit recently issued an important interpretation of bankruptcy law that directly impacts trademark licensing rights. In In re Tempnology LLC, 559 B.R. 809 (1st Cir. BAP 2016), the First Circuit Bankruptcy...more

Clarity on Clawback Claims in Cayman

The Cayman Islands Court of Appeal recently smoothed the path for Cayman liquidators to pursue clawback claims. The decision clarifies the Cayman courts’ approach to voidable preference payments, making it easier for Cayman...more

Make-Whole Momentum Halted: Third Circuit Rejects Momentive Rationale and Requires Debtor to Pay Make-Whole Premium

In a recent decision (“Energy Future Holdings”) poised to have wide-reaching implications, the Third Circuit Court of Appeals reversed the decisions of the Bankruptcy and the District Courts to hold that a debtor cannot use a...more

Third Circuit Upholds The Enforceability Of Make-Whole Premiums In Post-Bankruptcy Context

In a recent November 17, 2016 opinion, Delaware Trust Co. v. Energy Future Intermediate Holding Company LLC, Case No. 16-1351, the Third Circuit Court of Appeals reversed two lower court opinions by holding that make-whole...more

EFIH Noteholders Find Redemption for the Payment of Make-Whole Premiums

On November 17, 2016, the United States Court of Appeals for the Third Circuit issued a decision in which it held that holders of first lien notes and second lien notes of Energy Future Intermediate Holding Company LLC and...more

Triumph for Energy Future Noteholders in Third Circuit Make-Whole Decision

On November 17, 2016, in Delaware Trust Co. v. Energy Future Intermediate Holding Company LLC (In re Energy Future Holdings Corp.), Case No. 16-1351 (3d Cir. Nov. 17, 2016), the United States Court of Appeals for the Third...more

Ninth Circuit Reverses Itself on Payment of Default Interest in Cure Cases

Reversing its long standing precedent, the U.S. Court of Appeals for the Ninth Circuit held that when a chapter 11 debtor cures a default under its loan agreements, the debtor is required to pay default interest as required...more

Ninth Circuit Overturns Entz-White Lumber; Avoiding Default Interest Via Cure Through Chapter 11 Plan No Longer Valid

In the case of Pacifica L 51, LLC v. New Investments, Inc. (In re New Investments, Inc.), 9th Cir. November 4, 2016, the U.S. Court of Appeals for the Ninth Circuit held that a Chapter 11 debtor could not avoid paying default...more

When Can a Bondholder Insist on Prompt Payment of Principal or Interest: Recent Developments under the Trust Indenture Act

In December 2014 and January 2015, the United States District Court for the Southern District of New York issued two sets of decisions — Marblegate Asset Mgmt. v. Educ. Mgmt. Corp. and MeehanCombs Global Credit Opportunities...more

Fair Warning: Amendments or Supplements to Language Often Found in Amended and Restated Loan Agreements May Be Required

Recently, the U.S. Court of Appeals for the Sixth Circuit issued an opinion in the Chapter 7 bankruptcy case Bash v. Textron Financial Corporation (In re Fair Finance Company), which has important effect on a number of legal...more

Commercial Restructuring & Bankruptcy Alert - October 2016

Welcome to the October 2016 issue of the CR&B Alert, the newsletter produced by Reed Smith's Commercial Restructuring & Bankruptcy Group. Excerpt from newsletter: DELAWARE AND NEW YORK AT ODDS OVER RECLAMATION...more

The Eleventh Circuit has spoken: “Debtors who surrender property must get out of the creditor’s way”

In recent years, there has been a hotbed of litigation across the nation, particularly in Florida state and bankruptcy courts, regarding a debtor’s ability to contest a secured creditor’s foreclosure notwithstanding the...more

What Are Fiduciary Duties Between Members In An Arizona LLC?

A few years I wrote an article named Are There Fiduciary Duties between Members in an Arizona LLC? At the time, there were no published decisions in Arizona on this issue. However, a bankruptcy judge had dismissed my...more

North Carolina Court Clarifies Deadlines to Set Aside Fraudulent Conveyances

Recently, the North Carolina Court of Appeals, in the case of KB Aircraft Acquisition, LLC v. Berry, et al., clarified the time limit for bringing claims under the North Carolina Uniform Voidable Transactions Act (“UVTA”). ...more

Secured creditors may vote during receivership upon reduction of secured claims

On 25 July 2016, the White & Case team obtained, at the Supreme Court of the Russian Federation (the "Supreme Court"), a declaration that a secured creditor has the right to reduce, at its discretion, the amount of a secured...more

NJ Supreme Court Holds Intervening Mortgage Takes Priority After Discretionary Advances by Initial Mortgagee

The New Jersey Supreme Court recently clarified its rules regarding mortgage priority, holding that a factoring company’s secured first mortgage can be trumped by a law firm’s later-filed mortgage where the factoring company...more

August 2016: Bankruptcy & Restructuring Litigation Update

Delaware Bankruptcy Court Disagrees with Second Circuit on Implied Preemption of State-Law Fraudulent Transfer Claims Brought by Creditors. In recent years, several bankruptcy and district courts have addressed whether the...more

Troubled Waters: The Raging Storm Over Safe Harbors

Two United States courts recently issued decisions involving the scope of the Bankruptcy Code’s safe-harbor provision in section 546(e) related to avoidance actions. In one, in the Second Circuit, the court took a broad...more

Seventh Circuit: Section 546(e) Safe Harbor Does Not Shield From Avoidance Transfers Made Through Financial Institution Conduits

In FTI Consulting, Inc. v. Merit Management Group, LP, the Seventh Circuit recently held that transfers are not protected under the safe harbor of section 546(e) of the U.S. Bankruptcy Code from fraudulent transfer and other...more

In Conflict With Other Circuits, Seventh Circuit Rules That Certain Transfers Involving Financial Institution Intermediaries Not...

Section 546(e) of the bankruptcy code prohibits a bankruptcy trustee from avoiding “settlement payment[s]”, or payments “made in connection with a securities contract,” that are “made by or to (or for the benefit of)”...more

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