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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

Delaware District Court: Using Contract Rights to Strategic Advantage Not Grounds for Equitable Subordination in Bankruptcy

When lenders use an aggressive strategy to deal with a financially troubled borrower that ultimately files for bankruptcy protection, stakeholders in the case, including chapter 11 debtors, trustees, committees, and even...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

Fifth Circuit: District Court Improperly Referred Bankruptcy Appeal to Magistrate Judge for Final Determination

Federal district courts, with the consent of the parties, are authorized by statute to refer "civil matter[s]" to magistrate judges for the purpose of conducting all proceedings and entering a judgment in the litigation. In...more

Eleventh Circuit Rules that Coal Act Payment Obligations Arising in 2016 Were Discharged by 1995 Chapter 11 Plan

Whether claims have been discharged in bankruptcy is a frequently litigated issue. This is particularly so in chapter 11 cases involving mass tort claims that may have technically "arisen" when the debtor manufactured or sold...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

Texas District Court: Bankruptcy Sale Break-Up Fee Satisfied Both Business Judgment Test and Administrative Expense Standard

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

Denial of Chapter 11 Plan Confirmation Unwarranted Even if Plan Support Agreements Violated Disclosure Requirements

A bedrock principle underlying chapter 11 of the Bankruptcy Code is that creditors, shareholders, and other stakeholders should be provided with adequate information to make an informed decision to either accept or reject a...more

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

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

Business Restructuring Review July–August 2022

On June 6, 2022, the U.S. Supreme Court issued a much-awaited decision, Siegel v. Fitzgerald, No. 21-441, __. U.S. __, 2022 WL 1914098 (U.S. June 6, 2022), holding unconstitutional certain aspects of Congress’s 2017 amendment...more

Florida Bankruptcy Court: Chapter 11 Creditors' Committee Has No Unconditional Right to Intervene in Adversary Proceeding

Bankruptcy and appellate courts disagree over whether a creditors' committee has the unconditional right to intervene in an adversary proceeding commenced during a chapter 11 case. The issue has created a split among the...more

Fifth Circuit Rules that Chapter 11 Debtors May Reject Filed-Rate Contracts Without FERC Permission

In FERC v. Ultra Resources, Inc. (In re Ultra Petroleum Corp.), 2022 WL 763836 (5th Cir. Mar. 14, 2022), the U.S. Court of Appeals for the Fifth Circuit issued a long-awaited ruling on an appeal from a bankruptcy court order...more

Business Restructuring Review | May–June 2022

FIFTH CIRCUIT WEIGHS IN ON BANKRUPTCY ASSET SALES FREE AND CLEAR OF LEASEHOLD INTERESTS - The ability of a trustee or chapter 11 debtor-in-possession (“DIP”) to sell bankruptcy estate assets “free and clear” of competing...more

Fifth Circuit Weighs In on Bankruptcy Asset Sales Free and Clear of Leasehold Interests

The ability of a trustee or chapter 11 debtor-in-possession ("DIP") to sell bankruptcy estate assets "free and clear" of competing interests in the property has long been recognized as one of the most important advantages of...more

Florida District Court: Foreign Debtor Need Not Have U.S. Residence, Assets, or Place of Business to Be Eligible for Chapter 15...

Courts disagree over whether a foreign bankruptcy case can be recognized under chapter 15 of the Bankruptcy Code if the foreign debtor does not reside or have assets or a place of business in the United States. In 2013, the...more

Delaware Bankruptcy Court Rejects Use of Tax Code Look-Back Period in Avoidance Action

The ability of a bankruptcy trustee or chapter 11 debtor-in-possession ("DIP") to avoid fraudulent transfers is an important tool to promote the bankruptcy policies of equality of distribution among creditors and maximizing...more

Business Restructuring Review | March–April 2022

MODIFICATION OF SECURED LOAN UNDER CRAMDOWN CHAPTER 11 PLAN WARRANTED DUE TO PLAN FEASIBILITY THREAT - Many recent court rulings concerning the treatment of secured creditors under a chapter 11 plan have focused on...more

Hertz Bankruptcy Court Weighs In on Make-Whole Premiums, Solvent-Debtor Exception, and Pendency Interest

Perhaps surprisingly given the rarity of such cases, a handful of high-profile court rulings recently have addressed whether a solvent chapter 11 debtor is obligated to pay postpetition, pre-effective date interest ("pendency...more

Confirmation Denied: Chapter 11 Plan Did Not Satisfy New Value Exception to Absolute Priority Rule Without Market Testing

When existing interest holders attempt to retain ownership of a chapter 11 debtor after confirmation of a nonconsensual plan of reorganization, the Bankruptcy Code's plan confirmation requirements, including well-established...more

U.S. Supreme Court Bankruptcy Roundup

This Term, the U.S. Supreme Court accepted certiorari in Siegel v. Fitzgerald (In re Circuit City Stores, Inc.), 996 F.3d 156 (4th Cir. 2021), cert. granted, No. 21-441 (U.S. Jan. 10, 2022), in order to resolve the growing...more

Delaware Bankruptcy Court: No Implied Assumption of Executory Contracts in Bankruptcy

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

Florida Bankruptcy Court Defers to Brazilian Court in Dismissing Chapter 15 Adversary Proceeding

The foundation of chapter 15 of the Bankruptcy Code and similar legislation enacted by other countries to govern cross-border bankruptcy cases is "comity" and cooperation among U.S. and foreign courts. The importance of these...more

Florida Bankruptcy Court Rules that Foreign Debtor Need Not Have U.S. Residence, Assets, or Place of Business to Be Eligible for...

Courts disagree over whether a foreign bankruptcy case can be recognized under chapter 15 of the Bankruptcy Code if the foreign debtor does not reside or have assets or a place of business in the United States....more

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