Civil Procedure, Commercial Law & Contracts, Bankruptcy

Ninth Circuit Overrules Longstanding (But Questionable) Bankruptcy Appellate Panel Precedent to Allow Bankruptcy Court to...

by Kevin Coleman, Valerie Peo | Schnader Harrison Segal & Lewis LLP on 5/20/2013

Bankruptcy trustees and lenders to a potentially insolvent debtor — particularly any lender who has or intends to acquire an equity stake in the borrower — should take note of a recent decision by the U.S. Ninth Circuit Court...more

The Ninth Circuit Holds that Bankruptcy Courts Have Authority to Recharacterize Debt as Equity

by Robert Sahyan | Sheppard Mullin Richter & Hampton LLP on 5/15/2013

On April 30, 2013, the United States Court of Appeals for the Ninth Circuit held that the bankruptcy court has authority to recharacterize as equity, rather than debt, advances of funds made purportedly as a loan to the...more

Adversary Proceedings in Bankruptcy Court

by Jeff Field | Jeff Field & Associates on 5/15/2013

Adversary proceedings are lawsuits related to or arising from a bankruptcy case. It can be filed by you, your creditor or the trustee and may involve a variety of issues, including...more

Not So Secret - When Under Seal Isn't Enough

by Shirley Dai, Sharon Levine, Michael Savetsky | Lowenstein Sandler LLP on 5/10/2013

In a recent decision, the United States Bankruptcy Court for the Southern District of New York found the standard for sealing under § 107 of the Bankruptcy Code was not met and declined to seal a settlement agreement, despite...more

Surprise! Where did this Judgment Come From?

by John Skiba on 5/7/2013

Probably half a dozen times per week I meet with someone who has been notified that their next check is going to be a quite a bit lighter – wage garnishment. If you are living paycheck to paycheck finding out your wages are...more

Rogers Towers: A Lesson from the Lumber Yard: Middle District of Florida Raises Particularity Requirement for Trustee Standing in...

by Scott St. Amand, J. Ellsworth Summers, Jr. | Rogers Towers on 5/7/2013

One of the primary roles of a Chapter 7 trustee is to ensure that the bankruptcy estate is preserved prior to liquidation. It is no wonder, then, that the Trustee’s avoidance powers are well defined by the Bankruptcy Code....more

Ninth Circuit Widens Circuit Split Over Application of State or Federal Bankruptcy Law To Determine Whether Claims of...

by Alyson Allen, Mark Bane, Stephen Moeller-Sally, James Wilton | Ropes & Gray LLP on 5/3/2013

In an important decision for private equity sponsors and other insiders who advance loans to their businesses, on April 30, 2013, the Ninth Circuit Court of Appeals in In re Fitness Holdings International confirmed that...more

Where Do Your Interests Lie Under Chapter 15 of the Bankruptcy Code? Determining a foreign debtor’s “center of main interests”...

by Eric R. Blythe, Kevin J. Walsh | Mintz Levin - Bankruptcy, Restructuring &... on 5/1/2013

When doing business with a foreign company, it is important to identify the company’s “center of main interests” (“COMI”) as creditors may find themselves bound by the laws of the COMI locale. If a company initiates...more

"Post-Petition Restructuring Support Agreement Survives Challenge in Delaware"

by Mark Chehi, Van Durrer | Skadden, Arps, Slate, Meagher & Flom LLP on 4/30/2013

Background - The debtors in Indianapolis Downs operated a combined horse racing track and casino in Indiana. They had substantial secured indebtedness: more than $98 million of first lien (first priority), $375 million...more

Your Last Resort: The Unpaid Account

by Joe Virene | Looper Reed & McGraw, P.C. on 4/29/2013

A suit on an unpaid account against your customer will likely entitle you to the principal balance plus interest and attorney fees. But a suit on an unpaid account is only as good as your customer’s ability to satisfy the...more

Seventh Circuit Holds That Debtor Cannot Circumvent Bankruptcy's Absolute-Priority Rule

by Winthrop & Weinstine, P.A. on 4/25/2013

Unless creditors accept a debtor's plan of reorganization, bankruptcy law requires the plan to provide for the payment in full of creditors before owners of the debtor receive anything on account of their equity interest....more

Reinsurance Redux - April 2013

by Braden A. Borger, Amy S. Kline, Patrick Nugent, Sean T. O'Neill, Brian Simons, Matthew Smith | Saul Ewing LLP on 4/24/2013

In This Issue: - Assignment of Right to Collect on Reinsurance Treaty Held Not to Include Underlying Arbitration Clause: On February 25, 2013, the United States District Court for the Northern District of...more

Bankruptcy Courts In Georgia And Florida Show Obedience To Eleventh Circuit Court Of Appeals And Reluctantly Begin To Allow Lien...

by Bryan Glover | Burr & Forman on 4/24/2013

Three bankruptcy courts within the Eleventh Circuit have recently issued opinions in which they have reluctantly allowed the debtor to entirely strip off the interests held by junior lienholders when the value of the real...more

Bond Consent Solicitation Payments - Court of Appeal Upholds Judgment in Azevedo & Another v Imcopa

by Michael Doran, Kevin Heverin, Stephen Phillips | White & Case LLP on 4/24/2013

In summer 2012, two important judgments were handed down on cases relating to bond consent solicitations. Although the consent solicitation techniques proposed by the debtor companies in each case were markedly different, at...more

The fate of Argentina's debt restructuring is getting closer

by Sheppard Mullin Richter & Hampton LLP on 4/15/2013

In what the Financial Times has called “the sovereign debt restructuring case of the century,” Argentina has timely submitted its proposal as requested by the U.S. Court of Appeals for the Second Circuit, with which it is...more

March 2013 - SALT Shaker Newsletter

by Mary Alexander, Andrew Appleby, Zachary Atkins, Madison Barnett, Todd Betor, Scott Booth, Christopher Chang, Timothy Gustafson, Sahang-Hee Hahn, Jessica Kerner, Pilar Mata, more +Kathryn Pittman, David Pope, Jack Trachtenberg | Sutherland Asbill & Brennan LLP on 4/1/2013

In this issue: - Delivered by Independent Contractors, Undelivered by P.L. 86-272: Order Fulfillment Activities Subject Out-of-State Seller to New York Corporation Franchise Tax - Everything’s Bigger in Texas,...more

Rogers Towers: Let the Stripping Begin: Lower Courts in the Eleventh Circuit Cautiously Embrace McNeal

by Scott St. Amand, J. Ellsworth Summers, Jr. | Rogers Towers on 3/28/2013

It was only a matter of time before judges in the lower courts of the Eleventh Circuit began to accept the appellate court’s decision in McNeal. Two such opinions have recently been published in the Middle Districts of...more

Rogers Towers: In re Davenport: The Eleventh Circuit sets Minimal Standards for Creditor Reliance in Fraud Case

by Scott St. Amand, J. Ellsworth Summers, Jr. | Rogers Towers on 3/26/2013

The Bankruptcy Code protects lenders which reasonably rely upon a debtor’s financial statements when approving a loan. The Eleventh Circuit was recently faced with an “enterprising” debtor who attempted to challenge the...more

In Addition To Natural Gas Providers And Water Providers, Bankruptcy Courts Are Now Allowing Electricity Providers To Claim...

by Elizabeth Aboulafia, Gregory G. Nickson | Cullen and Dykman LLP on 3/21/2013

Recent case law may allow electricity providers to benefit from a payment priority for the value of electricity provided to a bankrupt debtor during the twenty (20) days preceding the date of the debtor’s bankruptcy filing...more

Bankrupt Municipality May Reduce Retiree Benefits

by Aaron Kleven | Sheppard Mullin Richter & Hampton LLP on 3/15/2013

The bankruptcy of the largest U.S. city to file a chapter 9 bankruptcy petition has yielded a decision with serious implications for municipal creditors. Specifically, the United States Bankruptcy Court for the Eastern...more

When in Doubt, File a Motion: Trends Concerning Automatic Stay Violations

by Travis Knobbe | Spilman Thomas & Battle, PLLC on 3/15/2013

Bankruptcy filings in Virginia, and nationwide, declined significantly in 2012, and it appears the decline is continuing in 2013. However, thousands of cases continue to be filed, and it is important for practitioners to...more

Can A Creditor With A Judgment Levy On Receivership Estate Funds?

by Peter Davidson | Ervin Cohen & Jessup LLP on 3/7/2013

QUESTION: I am a receiver for a partnership. A creditor with a judgment has threatened to levy on funds I have collected. Can she do that?...more

Fifth Circuit Rejects “Artificial Impairment” Standard in Confirmation of Single Asset Real Estate Plan

by King & Spalding on 3/4/2013

In a pro-debtor opinion released on February 26, 2013, the Fifth Circuit Court of Appeals held that a debtor may “artificial impair” claims in a class to obtain an impaired and accepting class of claims as required by section...more

SDNY Denies Payment of Administrative Expense Claim by Relying on the Operative Document as a Whole and Rejecting a Statutory Rule...

by Emily Cohen | Cadwalader - Financial Restructuring on 2/26/2013

On December 13, 2012, Judge Vincent L. Briccetti from the United States District Court of the Southern District of New York denied the appellant Notes Trustee’s request to compel payment of an administrative expense claim....more

U.S. Bank, Nat’l Ass’n v. Lightstone Holdings, LLC (N.Y. App. Div. Feb. 14. 2013) -- Senior Lender Gets Second Chance to Assert...

by King & Spalding on 2/22/2013

A recent decision in the protracted litigation by lenders of Extended Stay to recover under guaranties executed by owners of Extended Stay highlights the need for clear and unambiguous drafting in intercreditor agreements....more

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Civil Procedure › Commercial Law & Contracts › Bankruptcy