News & Analysis as of

Debtors

Restructuring and Insolvency Bulletin Issue 2 - 2017: An update on COMI shifting to take advantage of the best insolvency tools to...

by Dechert LLP on

The EU has taken aim at fraudulent or abusive forum shopping in the Recast Insolvency Regulation, acknowledging the potential for misuse by debtors seeking to take advantage of more flexible insolvency processes available in...more

American Apparel Preference Actions Filed in Delaware Bankruptcy Court

by Fox Rothschild LLP on

Earlier this month, APP Winddown, LLC (formerly known as American Apparel, LLC) and its chapter 11 affiliates (the “Debtors”) filed approximately 201 complaints seeking the avoidance and recovery of allegedly preferential...more

Can An Entity Qualify as a Chapter 15 Debtor Without Ever Filing for Bankruptcy?

by Dechert LLP on

Chapter 15 of the Bankruptcy Code provides a framework through which representatives of foreign insolvency proceedings can commence ancillary U.S. proceedings and obtain relief from U.S. courts in aid of foreign...more

Bankruptcy Court Rules "Make-Whole" Provision Creates Enforceable Liquidated Damages

by Jones Day on

The Situation: After a ruling in In re Ultra Petroleum Corp. by the U.S. Bankruptcy Court for the Southern District of Texas, certain private-placement noteholders are entitled to a "make-whole" premium in excess of $200...more

Not so Stern: Delaware Bankruptcy Court Finds Authority To Approve Non-Consensual Third Party Releases; Stern Not Applicable

by Allen & Overy LLP on

On remand from an appeal to the United States District Court for the District of Delaware, Bankruptcy Judge Laurie Selber Silverstein penned a resounding and thoroughly reasoned sixty-nine page opinion holding that the...more

Failure To Comply With Plan Technicality Causes US Securities Law Violation

by Dechert LLP on

Section 5 of the Securities Act of 1933 prohibits the sale of a security unless a registration statement is in effect. This prohibition on the sale of unregistered securities does not apply to exempt transactions. One such...more

US Bankruptcy Filing Limitations - How Far Can You Go?

by Dechert LLP on

In order to file for bankruptcy, a corporate entity must be legally authorized to do so. Whether the bankruptcy petition has been duly authorized is governed by state law and often depends on the entity’s governance...more

Ninth Circuit Reverses Course on Measure of Collateral Value in Cramdown Confirmation of Chapter 11 Plan

by Jones Day on

In First Southern Nat’l Bank v. Sunnyslope Hous. LP (In re Sunnyslope Hous. LP), 2017 BL 216965 (9th Cir. June 23, 2017), the U.S. Court of Appeals for the Ninth Circuit held en banc that, in determining whether a chapter 11...more

International Legislative Update - September/October 2017

by Jones Day on

Germany—Major German insolvency law reforms designed to facilitate corporate group insolvencies will become effective on April 21, 2018. When the reforms come into force, they will supplement and complement the Recast...more

Focus on Health Care Provider Bankruptcies

by Jones Day on

The next few years are expected to see a significant increase in the volume of bankruptcy cases filed by health care providers. Thus far in 2017, the number of bankruptcies in health care-related sectors, including hospitals,...more

Debtor’s Failure to Disclose No Longer Deadly in Eleventh Circuit

by Perkins Coie on

Employers and other defendants suffered a setback recently. Most large companies have been sued by an employee who failed to disclose the lawsuit or cause of action in their individual bankruptcy case. For many years, the...more

Reform Comes to Australian Restructuring and Insolvency Law

by Morgan Lewis on

Two key changes made to Australian insolvency law enhance restructuring efforts in Australia and could improve outcomes for US investors. ...more

Yet Another Ruling Deepens the Divide on Whether the Bankruptcy Code’s Avoidance Provisions Apply Extraterritorially

by Jones Day on

The ability to avoid fraudulent or preferential transfers is a fundamental part of U.S. bankruptcy law. However, when a transfer by a U.S. entity takes place outside the U.S. to a non-U.S. transferee—as is increasingly common...more

Some Upside To Being Upside-Down: The Fifth Circuit Provides Undersecured Creditors An Additional Front On which To Contest...

by Cole Schotz on

Undersecured creditors face unique challenges because they are neither fully secured nor fully unsecured. Beyond the obviously undesirable issue of being upside-down on their deal, undersecured creditors often are exposed to...more

Dear Debtor, Three Strikes And You’re Outta Here!

by Fox Rothschild LLP on

When an individual files for bankruptcy protection, he/she is entitled to certain wonderful benefits. For example, a Chapter 13 bankruptcy filing will stop (at least temporarily) a home foreclosure or car repossession and...more

The Pre-Action Protocol for Debt Claims

by Dentons on

The Pre-Action Protocol for Debt Claims comes into force on 1 October 2017. This note deals with the key elements to be aware of. Applicability - While the Protocol is named the Pre-Action Protocol for Debt Claims the...more

Not a Time for Second Thoughts: EDNY Holds Settlement Approval Stage Is No Escape Route

by Dechert LLP on

U.S. Bankruptcy Rule 9019 provides that on a motion brought by a trustee (and thus a chapter 11 debtor-in-possession as well) the court may approve a settlement. The prevailing view is that due to the court’s approval...more

Some Holiday Cheer for a Challenging Retail Environment

by Perkins Coie on

It would be an understatement to say that 2017 has been a difficult year for the retail sector. Store closings and bankruptcy filings punctuate the news almost daily. However, challenges beget opportunities, and this...more

Courts, Cooperation, and More: Incorporating Case-Specific Provisions in Insolvency Protocols - September 2017

by Jones Day on

In cross-border restructuring cases, interested parties increasingly rely on court-approved insolvency protocols to aid in managing complex insolvencies involving debtors' assets, liabilities, or operations that span...more

Best in Law: Which Interest Rate Applies in Bankruptcy? With Low Federal Rates, It Matters, BB&K Attorney Thomas Eastmond Writes...

by Best Best & Krieger LLP on

While the question of what interest rate applies to a claim in bankruptcy might seem, at first glance, to be straightforward — it is not. Depending on the circumstances, a creditor might be entitled to no interest at all,...more

The Section 363 Sale Process: Buying Assets from a Bankrupt Company

by Ward and Smith, P.A. on

Businesses struggle and bankruptcies are filed for a number of reasons, regardless of the economic climate. While unfortunate, this provides opportunities for others to purchase assets of distressed companies through the...more

Dear Mortgage Lender – Where Debtors Surrender, Act Quickly

by Fox Rothschild LLP on

The Eleventh Circuit’s ruling in the Failla case was triumph for mortgage lenders when it affirmed the District Court’s opinion that “once the debtor decides to ‘surrender’ secured property… [w]hile the debtor need not...more

The Devil's Dictionary of Bankruptcy Terms: Use of Cash Collateral

by Polsinelli on

The "Devil's Dictionary" is a quick-reference guide for commercial lenders and other restructuring professionals. In this series, we highlight many of the buzz words found in the Dictionary and used in today's bankruptcy...more

Wet Seal – Preference Actions Filed

by Fox Rothschild LLP on

On August 29, 2017, The Wet Seal, LLC filed preference actions against 67 defendants. The lead Wet Seal bankruptcy case is Case No. 17-10229 in the Bankruptcy Court for the District of Delaware. Wet Seal is represented by...more

Prescription: A discussion of without prejudice acknowledgments in South Africa

by Dentons on

Extinctive prescription is a means of rendering various types of obligations and claims as extinguished or unenforceable by the effluxion of time. In this article, we provide a brief overview on without prejudice statements...more

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