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Corporate Counsel Bankruptcy Court

Pillsbury Winthrop Shaw Pittman LLP

Bankruptcy Court Rejects Attempts to Lock Up Creditor Votes in Favor of Reorganization Plan

Recent decisions reflect a renewed focus on lock-up provisions by bankruptcy courts. The U.S. Bankruptcy Court for the Southern District of New York recently severed a provision from a post-petition agreement that required...more

Tyson & Mendes LLP

A Seat at the Table: Supreme Court Rules Insurers Have a Right to Be “Heard on Any Issue” in Chapter 11 Cases

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On June 6, 2024, the United States Supreme Court issued its long-awaited ruling in Truck Insurance Exchange v. Kaiser Gypsum Co., Inc., et al. The Court held an insurer with financial responsibility for claims in bankruptcy...more

Mintz - Bankruptcy & Restructuring Viewpoints

Delaware Bankruptcy Court Grants Derivative Standing to Creditors’ Committee to Sue Members and Officers of Delaware LLC

In early February, a Delaware bankruptcy judge set new precedent by granting a creditors’ committee derivative standing to pursue breach of fiduciary duty claims against a Delaware LLC’s members and officers. At least three...more

King & Spalding

Sharp Teeth: Civil and Criminal Liability for Officers and Directors of Insolvent Saudi and UAE Companies

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The recent detention of a restructuring professional in the United Arab Emirates serves as a stark reminder that directors and officers of insolvent or distressed companies can face personal liability for their actions or...more

Fox Rothschild LLP

Are Gate-keeper Provisions in Chapter 11 Confirmation Orders a Stopgap for Nonconsensual Third-Party Releases?

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As many bankruptcy practitioners are aware, there is a circuit court split with respect to the allowability of non-consensual third-party releases. Notably, in the Purdue Pharma case, the United States Court of Appeals for...more

Harris Beach PLLC

California Court Ruling Could Potentially Open Up a Pathway to Bankruptcy for Cannabis-Related Businesses

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A California court recently confirmed a plan for a cannabis-related business to sell its equity assets in a Canadian cannabis company and distribute the proceeds to creditors, a milestone ruling that may open a new path for...more

Miller Canfield

Supreme Court Rules That Section 363(m) Protections for a Bankruptcy Sale Are Not Jurisdictional

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On April 19, 2023, the Supreme Court issued its opinion in MOAC Mall Holdings, LLC v. Transform Holdco, LLC. The decision has implications for sales of property in bankruptcy cases. Section 363(m) of the Bankruptcy Code...more

Arnall Golden Gregory LLP

Don’t Rock the Vote, Baby: 11th Circuit Confirms That Materially Adverse Ch. 11 Plan Modifications Require a New Disclosure...

In a detailed and emphatic ruling on January 5, 2023, the U.S. Court of Appeals for the 11th Circuit made it clear that if a pending Chapter 11 plan, after initial plan solicitation and voting by creditors, is modified in any...more

Vinson & Elkins LLP

Sanofi v. Mallinckrodt: Delaware Decision Highlights Importance of Asset Sale Structures in Later Bankruptcy Proceedings

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In Sanofi-Aventis U.S. LLC v. Mallinckrodt PLC,1 the United States District Court for the District of Delaware ruled that a debtor that purchased intellectual property under a prepetition asset purchase agreement could...more

Morrison & Foerster LLP

Celsius Bankruptcy Court Holds Customer Deposits in “Earn Accounts” Are Estate Property

On January 4, 2023, Judge Glenn of the United States Bankruptcy Court for the Southern District of New York issued a much-awaited decision in the Celsius Network LLC (along with its affiliated debtors, “Celsius” or the...more

Jones Day

Third Circuit Sets Standard for Appointment of Future Claims Representatives in Asbestos Bankruptcy Cases

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Unlike professionals retained in a chapter 11 case by trustees, debtors, or official committees, the Bankruptcy Code provides little guidance regarding the appointment of a representative for "future claimants" in a chapter...more

Proskauer Rose LLP

Suing Directors of a Troubled Business: When Form Trumps Substance

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Creditors of distressed businesses are often frustrated by shareholder-controlled boards when directors pursue strategies that appear to be designed to benefit shareholders at the creditors’ expense. In these circumstances,...more

Shumaker, Loop & Kendrick, LLP

Corporate bankruptcy reformation in the US - Eurofenix, Summer 2022

As a result of recent high profile Chapter 11 cases, such as Purdue Pharma and Johnson & Johnson, there has been great Congressional and media attention to controversial Chapter 11 practices. These include debtors’ forum- and...more

Fox Rothschild LLP

Is a Postpetition Non-bankruptcy Court Order a Violation of the Automatic Stay?: The Ninth Circuit Bankruptcy Appellate Panel...

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On April 5, 2022, the Ninth Circuit Bankruptcy Appellate Panel (the “BAP”) published an opinion, Censo, LLC v. Newrez, LLC, BAP No. NV-21-1125-LTF (Apr. 5, 2022), which provides a framework for addressing whether a...more

Proskauer - Minding Your Business

The (Third) Party’s Over? Recent Decisions Cast Doubt on the Continued Vitality of Third Party Releases in Chapter 11...

Two recent decisions by U.S. District Courts have rejected attempts to include nonconsensual third party releases in chapter 11 reorganization plans. These rulings suggest third party releases may be facing increasing push...more

Troutman Pepper

Second Circuit Decision Potentially Broadens RICO Proximate Cause Element

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The Second Circuit Court of Appeals recently issued an opinion that potentially broadens the proximate cause element of claims brought under the Racketeer Influenced and Corrupt Organizations Act (RICO). RICO’s proximate...more

Jones Day

The Year in Bankruptcy: 2021

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One year ago, we wrote that, unlike in 2019, when the large business bankruptcy landscape was generally shaped by economic, market, and leverage factors, the COVID-19 pandemic dominated the narrative in 2020....more

WilmerHale

Protecting Common-Interest Privilege and Work-Product Protections: Guidance from Recent Decisions

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Two recent decisions from Judge Laurie Selber Silverstein of the United States Bankruptcy Court for the District of Delaware address common-interest and attorney work-product protection issues that arose in the bankruptcy...more

Arnall Golden Gregory LLP

Delaware Bankruptcy Court Rules That “Critical Vendor” Status Does Not Insulate a Creditor From Preference Claims

In what may be a pivotal ruling on the issue nationwide, a bankruptcy court in the influential District of Delaware has ruled that obtaining status as a so-called “critical vendor” in a commercial Chapter 11 case does not...more

Troutman Pepper

Bankruptcy Court Recharacterizes Alleged Loan as Equity Under Delaware Law

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When is a loan not a loan? The SDNY Bankruptcy Court in In Re: Live Primary, LLC held that a $6 million start-up loan was actually an equity contribution after analyzing the terms of the transaction and the intent of the...more

Patterson Belknap Webb & Tyler LLP

Court Dismisses Bankruptcy Case to Enable Debtor to Seek a Paycheck Protection Loan

It is well known in the restructuring world that a debtor in bankruptcy can’t get a PPP loan. But what if you’re a debtor and decide a PPP loan could save your business? Will a court dismiss the case so you can seek a loan?...more

Jones Day

The Year in Bankruptcy: 2019

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Except for disastrous fires that sparked the largest bankruptcy filing of the year, liabilities arising from the opioid crisis, the fallout from price-fixing, and corporate restructuring shenanigans, economic, market, and...more

Patterson Belknap Webb & Tyler LLP

The Solvent Debtor Exception Lives . . . Probably: Fifth Circuit Withdraws Controversial Ruling, but Key Holding Remains

Ultra Petroleum entered bankruptcy in significant financial distress, but then – thanks to a spike in oil prices – the debtor’s fortunes changed almost literally overnight. It is generally accepted that a solvent debtor must...more

Locke Lord LLP

The Covenant Loophole That Wasn’t: SDNY Derides Windstream’s Structuring Efforts as “Too Cute by Half”

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On February 15, 2019, following a full bench trial, the Honorable Jesse M. Furman (S.D.N.Y.) entered judgment in favor of Aurelius Capital Master, Ltd. (“Aurelius”) and against Windstream Services, LLC (“Windstream”) in the...more

Nelson Mullins Riley & Scarborough LLP

Signed, Sealed, Delivered, and Enforceable: Second Circuit Finds Email to Be an Enforceable Agreement

For a vast number of professionals, email has become the preferred method for communicating and conducting business. However, many of those people who would choose to fire off a quick email over picking up a phone may not be...more

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