When the Supreme Court issued its decision in Baker & Botts L.L.P. v. ASARCO LLC in June, it caused something of a flutter in the bankruptcy community. The decision held that a professional could not recover for the fees it incurred in defending against objections to its fee application.
Mediation has become an invaluable tool in large chapter 11 cases.
For the second time in the past few months, Judge Christopher Sontchi has dashed the hopes of certain creditors in the Energy Future Holdings (“EFH”) chapter 11 case that they would be paid a make-whole premium worth over $400 million.
Last month, the Supreme Court announced its decision in Baker Botts LLP v. Asarco LLC. As most readers will be aware, that case involved a dispute over whether debtor’s retained counsel could be compensated for the fees and expenses incurred in the defense of its bankruptcy fee application.
The Supreme Court has not handled its recent major bankruptcy decisions well. The jurisdictional confusion engendered by its 2011 decision in Stern v.
Four years ago, in Stern v. Marshall, the Supreme Court stunned many observers by re-visiting separation of powers issues regarding the jurisdiction of the United States bankruptcy courts that most legal scholars had viewed as long settled. Stern significantly reduced the authority of bankruptcy courts, and bankruptcy judges and practitioners both have since been grappling with the ramifications of that decision.
People are generally familiar with the concept that a party’s right to appeal applies to those orders that are “final.” A “final” order is one that resolves or disposes of the disputes between the parties. While an interlocutory order may be appealable at the discretion of the appellate court, the aggrieved party has no absolute right to appeal an order that is not “final.”
Judge Robert Gerber ruled last week that General Motors LLC (“New GM”), the entity formed in 2009 to acquire the assets of General Motors Corporation (“Old GM”), is shielded from a substantial portion of the lawsuits based on ignition switch defects in cars manufactured prior to New GM’s acquisition of the assets of Old GM in 2009.
Most bankruptcy lawyers are familiar with section 1111(b) and its attempt to rectify a perceived unfairness resulting from the ruling in In re Pine Gate Assocs., Ltd., Case No. B75-4345A, 1976 U.S. Dist. LEXIS 17366 (N.D. Ga. Oct. 14, 1976). In Pinegate, the creditor’s collateral had depreciated as the result of a cyclical market fluctuation.
Judge Christopher Sontchi issued a notable opinion last week in the bankruptcy case of Energy Future Holdings Corp., et al. (“EFH”), Case No. 14-10979 (D. Del.), ruling that the repayment in full of certain senior secured notes did not trigger an obligation by the debtors to pay a make-whole premium.