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Judicial Foreclosure Sales are Immune to Preference Challenges

The Bankruptcy Court for the Western District of Pennsylvania has recently held that a pre-petition foreclosure of a debtor’s real property, conducted in accordance with state law, is not subject to attack as a preference...more

Creditor-Friendly Changes to North Carolina’s Accord and Satisfaction Law

A creditor can now reinstate a disputed debt that has been inadvertently discharged. The North Carolina Legislature recently amended its accord and satisfaction law to include creditor-friendly revisions that make it...more

Circulating security interests and competing priorities

The recent Federal Court decision (on 1 March 2017) in Langdon, in the matter of Forge Group Limited (Receivers and Managers Appointed) (in Liq) [2017] FCA 170 considered the situation where a sizeable, unexpected tax refund...more

Reform of German clawback law

The German Parliament passed an act to reduce the risk of clawback actions and provide more legal certainty in this regard under German law, the so called "Act for the Improvement of Legal Certainty concerning Clawback...more

Recent SDNY decision protects and clarifies investment banker compensation in bankrupcy

Recently in the Relativity Media Chapter 11 case in the Southern District of New York, Bankruptcy Judge Michael E. Wiles definitively shot down challenges brought by the fee examiner Robert Keach and Relativity Secured Lender...more

Court Finds That There Is A Fact Issue On Whether Corporate Shareholder And Officer Breached Fiduciary Duties To Creditors

In Tow v. Wellington Yu, a bankruptcy trustee sued a corporation’s shareholder and officer for breaching fiduciary duties by entering into a settlement agreement that required the sale of real estate where the defendant would...more

Equitable or Equity Committees: Lessons from Recent Cases

The second half of 2016 saw a surge in the number of requests to form official equity committees, especially in commodity-related restructurings. This most recent restructuring cycle began in August 2015 and remains active....more

"Loan to own" strategies in Australia

The increase in the availability of alternate capital in Australia over the past decade has provided a landscape for well-tested global restructuring techniques to be applied locally. This includes 'loan to own' strategies....more

The Increased Use of Combined Hearings and Combined Plan and Disclosure Statements in Delaware

Since February 2016, the Local Rules for the United States Bankruptcy Court for the District of Delaware provide for combined hearings on approval of disclosure statements and confirmation of plans and for the use of combined...more

Second Circuit Holds That Minority Bondholders Cannot Avail Themselves of the Trust Indenture Act

While out-of-court restructurings can help companies in need, they can negatively impact minority bondholders. Minority bondholders displeased with out-of-court restructurings looked to a 2015 decision interpreting the Trust...more

Bankruptcy Is Not A Borrower Antidote For Loan “Default Interest”

Defaulting on a loan typically triggers a higher interest rate — “default interest” — as one of many consequences for the borrower. (Other consequences include acceleration of the maturity, late fees and penalties, and...more

What 2017 May Bring for the Restructuring Community

We asked some of our financial advisor colleagues to give us brief read outs on what they felt 2017 has in store for us now that we have gotten beyond the inauguration and into the first weeks of the Trump administration. ...more

Fifth Circuit Rules for PACA Claimants, and Weakens PACA, All in One Curious Ruling

Most restructuring practitioners are aware, either vaguely or through punishing experience, of the power of PACA creditors. PACA (or the Perishable Agricultural Commodities Act, 7 U.S.C. § 499a et seq. for those who hate...more

Ninth Circuit Holds That Rule Allowing Curing Debtors to Avoid Contractual Post-Default Interest Is No Longer Valid

The Ninth Circuit recently ruled that a Chapter 11 debtor could not avoid the payment of default interest under a promissory note as a condition to curing and reinstating such promissory note under a Chapter 11 plan. In...more

Substantive Consolidation: It’s Alive and Well (or Maybe Just Alive)

The doctrine of substantive consolidation (generally- the power of a bankruptcy court to consolidate the assets and liabilities of affiliated entities in bankruptcy) is a recognized remedy exercised by bankruptcy courts – one...more

Handy List of Basic Issues to Consider for the Transactional Workout

While significant energy here at the Bankruptcy Cave is devoted to substantive bankruptcy matters, not all aspects of a general insolvency practice are always fun and litigation. Oftentimes insolvency lawyers add the most...more

The Precarious Nature of Trust Assets at Home and Abroad

In Akers (and others) v. Samba Financial Group [2007] UKSC 6, the UK Supreme Court has confirmed the limited nature of British insolvency officer-holders’ ability to void dispositions of a company’s assets held on trust. The...more

Delaware Bankruptcy Court Amends Local Rules

The Delaware Bankruptcy Court amended its local rules effective February 1, 2017. A copy of the latest version of the rules may be found on the Bankruptcy Court's website. The red-line version to the 2016 version shows...more

New German Insolvency Code Amends Legal Basis for Contractual Close-out Netting

The German legislature has passed an amendment to the German Insolvency Code providing clarity on the status of netting arrangements in financial transactions which was cast into doubt by the German Federal Court of Justice...more

Delaware Bankruptcy Judge: A Carve-Out for Fees Is Not a Cap

Judge Christopher Sontchi recently issued an important opinion in the Molycorp chapter 11 case. He held that a standard carve-out in a financing order for the fees of counsel and other professionals for an official...more

Second Circuit Issues Reversal in Closely Watched Marblegate Case

In a 2-1 opinion, the Second Circuit overruled the district court in Marblegate Asset Management LLC v. Education Management Corp., finding no violation of the Trust Indenture Act (“TIA”) in connection with an out-of-court...more

New UAE Insolvency Law

Executive Summary - The new UAE bankruptcy law was published in the Official Gazette dated 29 September 2016 following the issuance of Federal Decree Law No.9 of 2016 on Bankruptcy (the “Bankruptcy Law”) and became...more

Second Circuit Refuses to Expand Scope of Chapter 15 of the Bankruptcy Code

On January 18, 2017, the U.S. Court of Appeals for the Second Circuit issued an opinion in the case of Trikona Advisers Limited v. Chugh, No. 14-975-cv, 2017 WL 191936 (2d Cir. Jan. 18, 2017), thwarting an attempt to expand...more

Second Circuit Overturns Southern District in Marblegate

On Jan. 17, the U.S. Court of Appeals for the Second Circuit vacated the decision of the District Court for the Southern District of New York in Marblegate Asset Management, LLC v. Education Management Finance Corp., finding...more

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

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