On February 25, 2019, the U.S. Court of Appeals (2nd Circuit) ruled that the trustee in the Chapter 11 case for Madoff Investment Securities, LLC could use the U.S. Bankruptcy Code to recover payments made between foreign...more
An April 12, 2019 Delaware Bankruptcy Court decision in the Sports Authority Chapter 11 case (In re TSAWD Holdings, Inc.) is an important reminder for sellers of goods on properly obtaining security in the goods they sell, to...more
David Conaway reports on a ruling by the English High Court in late 2018 that impacted the US Chapter 11 proceedings in Delaware.
Originally published in Eurofenix, Spring 2019.
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4/10/2019
/ 363 Sales ,
Chapter 11 ,
Cross-Border Insolvency Regulations (CBIR) ,
Debt Restructuring ,
Foreign Jurisdictions ,
Foreign Subsidiaries ,
Insolvency ,
Member State ,
The Model Law ,
UK ,
UNCITRAL
David Conaway advises not to get stuck in Chapter 11 when a sales contract is deemed to be an executory contract.
Originally published in Eurofenix, Autumn 2018.
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A June 2018 Bankruptcy Court decision in the Southern District of New York (SDNY) held that foreign companies with no presence in the U.S. were subject to default judgments....more
10/25/2018
/ Avoidance ,
Bankruptcy Code ,
Chapter 11 ,
Commercial Bankruptcy ,
Default Judgment ,
Federal Rules of Civil Procedure ,
Foreign Corporations ,
Fraudulent Transfers ,
Hague Convention ,
Insolvency ,
Jurisdiction ,
Summons
Companies sell goods or provide services to customers usually on two bases: (1) purchase orders and invoices with references to terms and conditions, or (2) a written sales or supply agreement....more
Innovation and creativity are essential for competitive advantage and success in a global economy. The attendant intellectual property assets are the product of substantial capital investment, and companies should carefully...more
4/3/2018
/ 363 Sales ,
Appeals ,
Chapter 11 ,
Commercial Bankruptcy ,
Intellectual Property Protection ,
IP License ,
License Agreements ,
Popular ,
Royalties ,
Split of Authority ,
Trademarks
In the Chapter 15 proceeding of Energy Coal S.p.A., the Delaware Bankruptcy Court required a U.S. creditor to recover its claim in Italy....more
Companies expend substantial resources managing the credit risk of customers, to protect the value of their sales. Many companies, however, do not always apply credit risk analysis to its supply chain, focusing instead on...more
David Conaway’s article, “Takata: The Unfortunate Recall”, was featured in the Association of Corporate Counsel Charlotte Chapter’s December 7, 2017 Newsletter. In the article, David discusses Takata’s airbag recall and the...more
Picture the scene: A vendor has just received word that its customer has filed chapter 11. The vendor put the customer on a cash-before-delivery basis and demanded assurances of performance. The vendor was successful in...more
Debtors in Chapter 11 proceedings rarely pay unsecured creditors a meaningful dividend on prepetition accounts receivable balances, much less pay them in full. In an era of aggressive lending to place capital in the market,...more
THE RULING: CHAPTER 15 DEBTORS CAN ASSERT AVOIDANCE ACTIONS UNDER STATE LAW -
On March 23, 2017, the United States Bankruptcy Court for the Southern District of Florida, Miami Division, ruled that a foreign debtor could...more
The so-called 20-day administrative priority claim (set forth in Section 503(b)(9) of the Bankruptcy Code) is perhaps the best remedy available to vendor creditors in Chapter 11 cases....more
The global retail sector is struggling. Throughout the world, previously successful and storied retailers and brands are facing increasing pressure from the “online” retailers.
Originally published in the Spring 2017...more
One by-product of the “globalization” of business is the homogenization of business practices. Businesses naturally seek and promote an environment and “rules” that are predictable, which allow for effective risk management....more
What is Section 503(b)(9)?
This section of the Bankruptcy Code provides an allowed administrative expense for “the value of any goods received by the debtor within 20 days before the date of commencement of a case * * * in...more
In Goodyear Tire & Rubber Co. v. Haeger, plaintiffs asserted a products liability claim against Goodyear for a tire failure. The parties entered into a settlement agreement, after which plaintiffs discovered that Goodyear did...more
I am pleased to share a great article on the recent reform of German insolvency law regarding avoiding pre-insolvency transactions by my good friend and colleague Annerose Tashiro, a leading cross-border insolvency specialist...more
The tragedy -
Takata Corporation is a Japanese-based company that manufactures safety products, primarily airbags and seat belts, as a tier one supplier to the global auto industry. Unfortunately, due to alleged...more
In Bankruptcy Code Section 363 sales of assets, there are winners and losers.
Chapter 11 is known as a forum for reorganizing or selling a ?nancially distressed business. If a Chapter 11 reorganization is not possible, a...more
There are a number of "creditor remedies" that can be utilized to maximize recovery from an insolvent customer. This article addresses one such "remedy": a carve-out from the pre-petition secured lender.
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Recently, the Delaware Bankruptcy Court ruled that a vendor's reclamation trumped a lender's lien on inventory.
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I had an occasion recently to compare the preference laws of the US and Canada in a cross-border matter, and wanted to share the attached compendium comparing the insolvency laws of the U.S., Canada and Mexico, Insolvency...more
Commercial litigation is an inevitable part of the business world. Companies make efforts to prevent and avoid disputes. . .however, when such disputes are unavoidable, companies seek to eliminate, or at least minimize, loss...more