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Business Restructuring Review September-October 2023 | Vol. 22 No. 5

Section 546(e) of the Bankruptcy Code’s “safe harbor” preventing avoidance in bankruptcy of certain securities, commodity, or forward-contract payments has long been a magnet for controversy. Several noteworthy court rulings...more

Texas Bankruptcy Court Blesses Serta Chapter 11 Plan Over Objections of Lenders Excluded from "Position Enhancement Transaction"

On June 6, 2023, the U.S. Bankruptcy Court for the Southern District of Texas confirmed the chapter 11 plan of bedding manufacturer Serta Simmons Bedding, LLC and its affiliates (collectively, "Serta"). In confirming Serta's...more

Court's Broad Interpretation of Definition of "Securities Contracts" Promotes Expansive Scope of Bankruptcy Code "Safe Harbor"

Section 546(e) of the Bankruptcy Code's "safe harbor" preventing avoidance in bankruptcy of certain securities, commodity, or forward-contract payments has long been a magnet for controversy. Several noteworthy court rulings...more

Business Restructuring Review July-August 2023 | Vol. 22 No. 4

There is longstanding controversy concerning the validity of third-party release provisions in non-asbestos trust chapter 11 plans that limit the potential exposure of various nondebtor parties involved in the process of...more

California Bankruptcy Court Examines Chapter 15 Discovery Rules

In In re Golden Sphinx Ltd., 2023 WL 2823391 (Bankr. C.D. Cal. Mar. 31, 2023), the U.S. Bankruptcy Court for the Central District of California denied a motion filed by a creditor of a chapter 15 debtor seeking discovery from...more

Objections to Bankruptcy Asset Sale Did Not Rise to Level of "Adverse Interest" Defeating Buyer's Good-Faith Status

The finality of asset sales and other transactions in bankruptcy is an indispensable feature of U.S. bankruptcy law designed to maximize the value of a bankruptcy estate as expeditiously as possible for the benefit of all...more

Illinois Bankruptcy Court: Whether Dispute Is Core or Non-Core Not "Bright Line" in Determining Enforceability of Arbitration...

Whether a dispute that is subject to arbitration can or must be referred to arbitration after one of the parties to a prepetition arbitration agreement files for bankruptcy has long been a source of disagreement among...more

"Straight" Dismissal of Chapter 11 Case Did Not Violate Jevic's Prohibition of "Structured Dismissals" that Do Not Conform with...

In Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973 (2017), the U.S. Supreme Court held that the Bankruptcy Code does not allow bankruptcy courts to approve distributions to creditors in a "structured dismissal" of a chapter...more

Second Circuit Green Lights Purdue Pharma Chapter 11 Plan Containing Nonconsensual Third-Party Releases

There is longstanding controversy concerning the validity of third-party release provisions in non-asbestos trust chapter 11 plans that limit the potential exposure of various non-debtor parties involved in the process of...more

Delaware Bankruptcy Court Rules that Due Diligence Is Element of Preference Claim Rather Than Basis for Affirmative Defense

A bankruptcy trustee's ability to avoid and recover pre-bankruptcy preferential transfers is essential to preserving or augmenting the estate for the benefit of all stakeholders. In 2019, however, the Bankruptcy Code was...more

Liquidating Chapter 11 Plan Confirmed Despite Provision Temporarily Enjoining Litigation Against Corporate Debtors

To prevent "trafficking in corporate shells," the Bankruptcy Code prohibits any discharge of corporate or partnership debts if the debtor is not an "individual" and, in a chapter 11 case, if the debtor proposes a liquidating...more

Texas District Court: Equitable Mootness Doctrine Does Not Preclude Appellate Review of Chapter 11 Plan Exculpation Clause

Exculpation clauses limiting the liability of certain entities for actions taken in connection with a bankruptcy case are a common feature of chapter 11 plans. However, courts disagree over the permitted scope of such...more

U.S. Supreme Court Rules that Bankruptcy Code's Protection of Unstayed Asset Sale Orders to Good-Faith Purchasers Is Not...

Section 363(m) of the Bankruptcy Code provides that the reversal or modification of an order approving a sale or lease of assets in bankruptcy does not affect the validity of the sale or lease to a good-faith purchaser or...more

Business Restructuring Review March–April 2023 | Vol. 22 No. 2

Chapter 15 Recognition Limited to Foreign Insolvency, Liquidation, or Restructuring Proceedings - In In re Global Cord Blood Corp., 2022 WL 17478530 (Bankr. S.D.N.Y. Dec. 5, 2022), the U.S. Bankruptcy Court for the...more

Chapter 15 Recognition Limited to Foreign Insolvency, Liquidation, or Restructuring Proceedings

In In re Global Cord Blood Corp., 2022 WL 17478530 (Bankr. S.D.N.Y. Dec. 5, 2022), the U.S. Bankruptcy Court for the Southern District of New York denied without prejudice a petition filed by the joint provisional liquidators...more

Eleventh Circuit Establishes Bright-Line Rule on Additional Disclosure and Re-Solicitation of Votes for Modified Chapter 11 Plan

A chapter 11 plan may be modified after votes have been solicited on the plan, but prior to confirmation, without providing creditors and interest holders with an amended disclosure statement and another opportunity to vote...more

Business Restructuring Review | Vol. 22 No. 1 | January-February 2023

Lawyer Spotlights: Genna Ghaul and Nicholas J. Morin - The Year in Bankruptcy: 2022 - A brief chronicle of the year's notable developments in corporate bankruptcy and restructuring, including business bankruptcy...more

The Year In Bankruptcy: 2022

One year ago, we wrote that, in early 2021, it was widely anticipated that the unprecedented pressure the COVID-19 pandemic brought to bear on the U.S. economy would lead to a boom in corporate bankruptcy filings. That boom...more

Appeal of Unstayed Order Approving Bankruptcy Sale of Real Property Free and Clear of Lease and Related Settlement Agreement...

To promote the finality of bankruptcy asset sales, section 363(m) of the Bankruptcy Code "moots" an appeal of an order approving a sale to a good-faith purchaser unless the party challenging the sale obtains a stay pending...more

Fifth Circuit: Bad Faith Does Not Overcome Deferential Business Judgment Standard Applied to Assumption or Rejection of Contracts...

The ability of a bankruptcy trustee or chapter 11 debtor-in-possession ("DIP") to assume, assume and assign, or reject executory contracts and unexpired leases is an important tool designed to promote a "fresh start" for...more

Sears Holding: A Case Study in Valuing Collateral in Chapter 11

Valuation is a critical and indispensable part of the bankruptcy process. How collateral and other estate assets (and even creditor claims) are valued determines a wide range of issues, from a secured creditor's right to...more

Fifth Circuit Embraces Flexible Approach to Countryman Test of Executoriness in Bankruptcies Involving Multiparty Contracts

Whether a contract is "executory" such that it can be assumed, rejected, or assigned in bankruptcy is a question infrequently addressed by the circuit courts of appeals. The U.S. Court of Appeals for the Fifth Circuit...more

Business Restructuring Review Vol. 21, No. 6 | November-December 2022

On October 14, 2022, the U.S. Court of Appeals for the Fifth Circuit issued a long-awaited ruling on whether Ultra Petroleum Corp. (“UPC”) must pay a $201 million make-whole premium to noteholders under its confirmed chapter...more

U.S. Bankruptcy Court Can Enforce Foreign Restructuring Plan Providing for Cancellation of U.S. Law-Governed Debt

Even before chapter 15 of the Bankruptcy Code was enacted in 2005 to govern cross-border bankruptcy proceedings, the enforceability of a foreign court order approving a restructuring plan that modified or discharged U.S....more

Business Restructuring Review Vol. 21, No. 5 | September–October 2022

Bankruptcy and appellate courts disagree over the standard that should apply to a request for payment of a break-up fee or expense reimbursement to the losing bidder in a sale of the debtor’s assets outside the ordinary...more

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