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Subordination Agreement Ignored in a Cramdown — But What’s So Unfair About That?

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

Are the Standards Governing Trustee Appointment Different in Chapter 9?

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

Gerrymandering votes in bankruptcy?  The classification of an undersecured claim 

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

The U.S. Supreme Court Holds that Orders Granting or Denying Lift Stay Motions are Final

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

Second Circuit Paves a Way to Protect LBO Payments from Avoidance Actions 

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

No Futility Exception: Where Transferee is on “Inquiry Notice,” No Good Faith Defense to Fraudulent Transfer Clawback Absent...

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

Right to Participate in Backstop is not on Account of a Pre-Petition Claim

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

Fourth Circuit Allows Unsecured Claim for Post-Petition Legal Fees

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

Newsflash: Subordination Agreement prevents Rule 2004 examination

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

Restructuring and Insolvency Bulletin Issue 3 - January 2018: Takata's Japanese Bankruptcy Case Survives Public Policy Objection

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

Restructuring and Insolvency Bulletin Issue 2 - 2017: U.S. Court recognizes a Russian bankruptcy case

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

Restructuring and Insolvency Bulletin Issue 1 - 2017: United States: D&O Insurance Policies – a cautionary tale: the Peril of...

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

Second Circuit Issues Reversal in Closely Watched Marblegate Case

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

Litigation Funder Communications Protected by the Attorney-Client Privilege and Work Product Doctrine

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

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