Recently, in In re Tribune Company, the Third Circuit affirmed that the Bankruptcy Code means exactly what it says and that the enforcement of subordination agreements can be abridged when cramming down confirmation of a...more
9/1/2020
/ Appeals ,
Bankruptcy Code ,
Chapter 11 ,
Commercial Bankruptcy ,
Cramdown ,
Creditors ,
Debtors ,
Discrimination ,
Interest Rate Swaps ,
Parent Corporation ,
Reorganizations ,
Senior Secured Debt ,
Subordination Agreement
Yes, says the First Circuit. The First Circuit recently affirmed the District Court’s decision to deny a group of bondholders’ (the “Bondholders”) motion to have a trustee appointed for the Employees Retirement System of the...more
5/9/2020
/ Appeals ,
Avoidance ,
Bankruptcy Code ,
Chapter 9 ,
Creditors ,
Debtors ,
Judicial Appointments ,
Puerto Rico ,
Retirement Funds ,
Reversible Error ,
Trustees
Confirmation of a Chapter 11 plan generally requires the consent of each impaired class of creditors. A debtor can “cramdown” a plan over creditor dissent, however, as long as at least one class of impaired claims accepts the...more
2/24/2020
/ Bankruptcy Code ,
Bifurcation ,
Chapter 11 ,
Commercial Bankruptcy ,
Commercial Buildings ,
Confirmation Proceedings ,
Cramdown ,
Creditors ,
Debtors ,
Flooding ,
Gerrymandering ,
Secured Debt ,
Shopping Centers ,
Unsecured Debt
The consequences of an order or judgement being final or interlocutory are enormous. An order from an interlocutory order requires leave since these orders are not appealable as of right. In addition, a failure to obtain...more
1/28/2020
/ Appeals ,
Automatic Stay ,
Bankruptcy Court ,
Commercial Bankruptcy ,
Creditors ,
Debtors ,
Dismissals ,
Federal Rules of Bankruptcy Procedure ,
Final Judgment ,
Interlocutory Orders ,
Mootness ,
Motion for Relief from Automatic Stay ,
Non-Appealable Decisions ,
Reaffirmation ,
Right To Appeal ,
Ritzen Group Inc v Jackson Masonry LLC ,
SCOTUS ,
Time-Barred Claims
The Second Circuit Court of Appeals recently held in In re Tribune Company Fraudulent Conveyance Litigation, No. 13-3992-cv (L) (2d Cir., Dec. 19, 2019) that Bankruptcy Code Section 546(e) barred claims seeking to avoid...more
1/21/2020
/ Appeals ,
Avoidance ,
Bankruptcy Code ,
Commercial Bankruptcy ,
Creditors ,
Dismissals ,
Financial Institutions ,
Fraudulent Conveyance ,
Leveraged Buyout ,
Merit Management Group v FTI Consulting ,
Preemption ,
Safe Harbors ,
Section 546(e) ,
Shareholders ,
Standing ,
Subsidiaries ,
Unsecured Debt
Answering “no” to a certified question from the Fifth Circuit, the Supreme Court of Texas held that a transferee on inquiry notice of fraud cannot shield itself from clawback without diligently investigating its initial...more
1/16/2020
/ Affirmative Defenses ,
Appeals ,
Bankruptcy Code ,
Clawbacks ,
Creditors ,
Debtors ,
Failure to Investigate ,
Fraud ,
Fraudulent Transfers ,
Good Faith ,
Inquiry notice ,
Internal Investigations ,
Investors ,
Stanford Ponzi Scheme ,
Transferees ,
TX Supreme Court ,
UFTA
Yes, says the Third Circuit. The Third Circuit recently held that the Bankruptcy Court has the authority to confirm a chapter 11 plan which contains nonconsensual, third-party releases when such releases are integral to the...more
1/13/2020
/ Bankrtupcy Confirmation Plans ,
Bankruptcy Court ,
Centers for Medicare & Medicaid Services (CMS) ,
Chapter 11 ,
Commercial Bankruptcy ,
Constitutional Challenges ,
Counterclaims ,
Creditors ,
Debtors ,
Department of Justice (DOJ) ,
Equity Investors ,
Injunctions ,
Judicial Authority ,
Lenders ,
Liquidity ,
Non-Consensual Rights ,
Reorganizations ,
Scope of Authority ,
Settlement Agreements ,
Shareholders ,
Stern v Marshall ,
Third-Party Release Agrements ,
Transfer of Assets
Following various disputes as to the scope of the collateral given to secured creditors, the debtors and certain of their noteholders jointly proposed a chapter 11. The plan included a rights offering that the consenting...more
It is a well-established principle of bankruptcy law that claims generally crystallize as of the bankruptcy petition date. Of course, section 506(b) of the bankruptcy code allows over-secured, secured creditors to recover...more
Bankruptcy Rule 2004 allows the examination of any entity with respect to various topics, including conduct and financial condition of the debtor and any matter that may affect the administration of the estate. Does a...more
As has been widely reported, over the last several years Takata Corporation and its various worldwide subsidiaries (together “Takata”) have been involved in a multitude of governmental investigations, class actions and...more
2/1/2018
/ Automobile Recall ,
Bankruptcy Code ,
Chapter 11 ,
Chapter 15 ,
Class Action ,
Constitutional Challenges ,
Corporate Restructuring ,
Creditors ,
Debtors ,
Due Process ,
Foreign Bankruptcies ,
Japan ,
Multi-Jurisdictional Litigation ,
Multidistrict Litigation ,
Proof of Claims ,
Public Policy ,
Takata
The Bankruptcy Court of the Southern District of New York recently addressed objections to the recognition of a Russian bankruptcy case as a foreign main case under Chapter 15 of the U.S. Bankruptcy Code and to the...more
10/16/2017
/ Acquisitions ,
Chapter 15 ,
Commercial Bankruptcy ,
Conflicts of Interest ,
Corporate Restructuring ,
Creditors ,
Foreign Bankruptcies ,
Foreign Judgments ,
Insolvency ,
Legal Representatives ,
Personal Finances ,
Public Policy ,
Russia
Directors and officers (D&Os) of troubled companies should be highly sensitive to D&O insurance policies with Prior Act Exclusion. While policies with such exclusion may be cheaper, a recent decision by the U.S. Court of...more
7/13/2017
/ Appeals ,
Banks ,
Breach of Duty ,
Chapter 11 ,
Class Action ,
Commercial Bankruptcy ,
Corporate Officers ,
Creditors ,
D&O Insurance ,
Debt Restructuring ,
Denial of Insurance Coverage ,
Directors ,
Insolvency ,
OTS ,
Parent Corporation ,
Policy Exclusions ,
Prior Wrongful Acts ,
Securities Violations ,
Shareholders ,
Subsidiaries ,
Transfer of Assets
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
1/28/2017
/ Appeals ,
Bonds ,
Commercial Bankruptcy ,
Corporate Restructuring ,
Creditors ,
Debt Restructuring ,
Fraudulent Conveyance ,
Lenders ,
Payment Terms ,
Section 316(b) ,
Secured Notes ,
Senior Indenture ,
Trust Indenture Act ,
Vacated
Addressing a novel issue in In re: International Oil Trading Company, LLC, 548 B.R. 825 (Bankr. S.D. Fla. 2016), the United States Bankruptcy Court for the Southern District of Florida recently denied in part an involuntary...more
6/8/2016
/ Attorney-Client Privilege ,
Commercial Bankruptcy ,
Common-Interest Privilege ,
Corporate Counsel ,
Creditors ,
Debtors ,
Document Productions ,
Involuntary Bankruptcy ,
Litigation Funding ,
Motion to Compel ,
Work-Product Doctrine