Withdrawal liability under ERISA can be a significant factor considered by private equity funds in making  investments in portfolio companies. And it becomes an even more significant factor if the private equity fund is  determined to be a member of the company’s “control group” in which case the fund (and perhaps its partners)  c

On December 12, 2019, the United States Court of Appeals for the Sixth Circuit (the “Sixth Circuit”) issued a long awaited decision in the dispute between FirstEnergy Solutions Corp. (“FirstEnergy”), the Federal Energy Regulatory Commission (“FERC”) and certain power purchase contract counterparties, including the Ohio Valley Electric Corporation (“OVEC”).¹ The decision helps clarify a murky area of jurisprudence and has significant implications for restructurings in the electric power sector.

“[A] secured creditor [has no] affirmative obligation under the automatic stay to return a debtor’s [repossessed] collateral to the bankruptcy estate immediately upon notice of the debtor’s bankruptcy,” the U.S. Court of Appeals for the Third Circuit held on Oct. 28, 2019. In re Denby-Peterson, 2019 WL 5538570, 1 (3d Cir. Oct. 28, 2019). Affirming the lower courts, the Third Circuit joined “the minority of our sister courts — the Tenth and D.C. Circuits” with its holding.

We recently reported on a decision of the United States Court of Appeals for the Third Circuit in favor of a creditor that seized a debtor’s property pre-petition.

On December 12, 2019, the United States Court of Appeals for the Sixth Circuit (“Sixth Circuit”) issued an opinion affirming in part and reversing in part a bankruptcy court’s assertion of exclusive and unlimited jurisdiction over certain of FirstEnergy Solutions’ (“FES”) power purchase agreements that FERC had previously approved under the Federal Power Act (“FPA”) and that FES sought to reject in bankruptcy.

You run a small business. Your customer needs some extra time to get through a squeeze and you work with the customer to pay down the old balance over time. Suddenly, the customer files bankruptcy and two years later you get a demand letter from a contingent-fee lawyer representing a litigation trustee seeking 80% of everything the customer paid you in the 90 days before the bankruptcy filing.

Section 510(b) of the Bankruptcy Code provides a mechanism designed to preserve the creditor/shareholder risk allocation paradigm by categorically subordinating most types of claims asserted against a debtor by equity holders. However, courts do not always agree on the scope of the provision in attempting to implement its underlying policy objectives. The U.S. Court of Appeals for the Fifth Circuit recently examined the broad reach of section 510(b) in In re Linn Energy, 936 F.3d 334 (5^th Cir. 2019).

In In re Ditech Holding Corp., 2019 WL 4073378 (Bankr. S.D.N.Y. Aug. 28, 2019), the U.S. Bankruptcy Court for the Southern District of New York addressed several objections to confirmation of a chapter 11 plan that proposed to sell home mortgage loans "free and clear" of certain claims and defenses of the homeowner creditors, contrary to a provision of the Bankruptcy Code—section 363(o)—which was enacted in 2005 to prevent free and clear sales of certain claims and defenses relating to consumer credit agreements.

Whether because of, or in spite of, the proliferating case law it is hard to say, but the issues in, underlying and surrounding third-party releases in Chapter 11 plans just continue to arise with incessant regularity, albeit without a marked increase in clarity. We have posted about those issues here six times in little more than two years,[1] and it is fair to assume that this post will not be the last.

Prepayment premiums (also referred to as make-whole premiums) are a common feature in loan documents, allowing lenders to recover a lump-sum amount if a borrower pays off loan obligations prior to maturity, effectively compensating lenders for yield that they would have otherwise received absent prepayment. As a result of the widespread use of such provisions, three circuit courts of appeal – the U.S. Court of Appeal for the Second, Third and Fifth Circuit – have recently had to address the enforceability of prepayment provisions in bankruptcy.