Commercial Restructuring & Bankruptcy Alert - June 2013

by Reed Smith

In this issue:

- Make–Whole Claim in the Amount of 37% of Loan Balance is Enforced by Delaware Bankruptcy Court

- Seventh Circuit Requires Competition for Insider’s New-Value Plan of Reorganization

- Following Castleton Plaza, Competitive Bidding Required Where Insider Asserts ‘New Value’ Exception to Absolute Priority Rule

- Fourth Circuit is the First to Hold Absolute Priority Rule Applicable to Individual Chapter 11 Debtors

- Tenth Circuit Joins Fourth Circuit in Holding that Absolute Priority Rule Applies to Individual Chapter 11 Cases

- Court Affirms Separate Classification, Holds Artificial Impairment Not Per Se Impermissible

- Debtor Had Legitimate Business Reason to Separately Classify Unsecured Claims

- Venue Created by Subsidiary Incorporation ‘Bootstraps’ Venue Selection

- Seventh Circuit Overturns Veil-Piercing

- Subtenant Retains Possessory Rights Under Section 365(h) Despite Explicit Free and Clear Section 363(f) Sale

- Asset Purchaser is Subject to Successor Liability for FLSA Judgment, Despite Specific Disclaimer of Liability

- Comity Outweighed by Significant Differences in Law in Chapter 15 Case

- Seventh Circuit Rules Rejection of Executory Trademark License Does Not Terminate the License, Creates a Split of Authority

- Post-Petition Lock-Down Agreement Does Not Equate to Impermissible Vote Solicitation

- Defrauded Initial Lien Holder Maintains Priority over Subsequent Innocent Lenders

- Mortgage Foreclosure is ‘Debt Collection’ Under Fair Debt Collection Practices

- Exit Lenders Liable for Conversion Where Distributions Contravene Credit Agreement

- Beware the Credit Overbid

- Bank Loses Possessory Lien Following Turnover of Funds to Trustee – Should Have Sought Adequate Protection

- Creditor Defeats Preference Action Based on ‘New Value’ Defense

- A Longer Statute of Limitations Period for Pursuing Fraudulent Transfer Actions May Exist

- Trustee Fails to Carry Burden, Court Affirms Pre-petition Transfers to Cover Check-Kiting Losses Not Avoidable Preference

- Ninth Circuit Joins Majority, Holds Unstayed Judgments Not ‘Bona Fide

- Counsel’s Corner: News From Reed Smith

- Excerpt from: Make–Whole Claim in the Amount of 37% of Loan Balance is Enforced by Delaware Bankruptcy Court:

Good news for lenders. Judge Carey of the Bankruptcy Court for the District of Delaware enforced a make-whole premium equal to 37 percent of the outstanding principal balance on a loan. He determined that, under New York state law, the calculation was not “plainly disproportionate” to the lender’s possible loss and was negotiated at arm’s length between sophisticated parties. In addition, Judge Carey held that a make-whole claim was not equivalent to “unmatured interest,” which is unauthorized under Section 502 of the Bankruptcy Code, but instead was a claim for liquidated damages. This is an important and favorable decision for lenders, especially in the current low interest rate environment. The case is In re School Specialty, Inc., No. 13-10152 (Bankr. D. Del. April 22, 2013).

Please see full newsletter below for more information.

LOADING PDF: If there are any problems, click here to download the file.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Reed Smith | Attorney Advertising

Written by:

Reed Smith

Reed Smith on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.