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Recent Delaware Bankruptcy Rulings Address Whether a Plan of Reorganization Can Deny a ‘Make-Whole’ Payment Without Impairing Lenders’ Claims

Takeaways

USA, Insolvency & Restructuring, Litigation, Skadden Arps Slate Meagher & Flom LLP, Medicare, Medicaid, Bankruptcy
Treatment of Midstream Agreements in Bankruptcy Remains Unsettled, but Limited Consensus May Be Emerging

Takeaways

USA, Insolvency & Restructuring, Skadden Arps Slate Meagher & Flom LLP, Bankruptcy, U.S. Court of Appeals
A Look at 2019 Court Decisions That May Shape Restructuring Issues in the Year Ahead

A series of decisions over the past year — on issues such as make-whole premiums, intercreditor agreements, backstops for rights offerings and nonconsensual third-party releases — will likely have a significant impact in 2020 on parties involved in bankruptcy proceedings.

Fifth Circuit Reverses Course on the Enforceability of Make-Whole Premiums in Chapter 11

USA, Healthcare & Life Sciences, Insolvency & Restructuring, Litigation, Skadden Arps Slate Meagher & Flom LLP, Medicare, Title 11 of the US Code
Second Circuit Allows Avoidance Actions Against Foreign Transferees in Madoff Proceeding

On February 25, 2019, the U.S. Court of Appeals for the Second Circuit vacated the bankruptcy court’s dismissal of avoidance actions brought by Irving Picard, the trustee (Trustee) for the liquidation of Bernard L.

USA, Insolvency & Restructuring, Litigation, Skadden Arps Slate Meagher & Flom LLP, U.S. Court of Appeals
Bax Limits Standing to Pursue Derivative Claims in Bankruptcy

Since the Delaware Supreme Court held in CML V, LLC v. Bax that creditors of a Delaware LLC lack standing to pursue derivative breach-of-fiduciary-duty claims, even if the LLC is insolvent or near insolvent, bankruptcy courts have decided a number of Bax-related issues in cases involving Delaware LLCs.

USA, Delaware, Banking, Insolvency & Restructuring, Litigation, Skadden Arps Slate Meagher & Flom LLP, Bankruptcy, Delaware Supreme Court, US District Court for District of Delaware
Whirlpool Corporation v. HHGreg, Inc. (In re HHGregg, Inc.)

(Bankr. S.D. Ind. Dec. 4, 2017)

The bankruptcy court grants the motion to dismiss, finding the defendant’s security interest in the debtor’s assets, including its inventory, has priority over the plaintiff’s reclamation rights. The plaintiff sold goods to the debtor up to the petition date and sought either return of the goods delivered within the reclamation period or recovery of the proceeds from the sale of such goods. Pursuant to 11 U.S.C. § 546(c), the Court finds the reclamation rights are subordinate and the complaint should be dismissed. Opinion below.

USA, Insolvency & Restructuring, Litigation, Stoll Keenon Ogden PLLC, Debtor, United States bankruptcy court
In re Dickson

(Bankr. E.D. Ky. Nov. 22, 2017)

USA, Kentucky, Insolvency & Restructuring, Litigation, Stoll Keenon Ogden PLLC
Bankruptcy opinions within a day or two of issuance from the Western and Eastern Districts of Kentucky, the Northern and Southern Districts of Indiana, the Sixth and Seventh Circuits, and the U.S. Supreme Court

(B.A.P. 6th Cir. Nov. 28, 2017)

The Sixth Circuit B.A.P. affirms the bankruptcy court’s dismissal of the Chapter 12 bankruptcy case. The court finds that the bankruptcy court failed to give the debtor proper notice and opportunity to be heard prior to the dismissal. However, the violation of due process was harmless error. The delay in filing a confirmable plan and continuing loss to the estate warranted the dismissal. Opinion below.

Judge: Preston

Attorney for Appellant: Heather McKeever

USA, Insolvency & Restructuring, Stoll Keenon Ogden PLLC, Bankruptcy, Supreme Court of the United States, United States bankruptcy court, Sixth Circuit, Seventh Circuit
Cox v. Specialty Vehicle Solutions, LLC

(6th Cir. Nov. 14, 2017)

USA, Insolvency & Restructuring, Litigation, Stoll Keenon Ogden PLLC, Sixth Circuit
In re Wilson

(Bankr. W.D. Ky. Nov. 1, 2017)

The bankruptcy court grants the creditor’s motion for stay relief to proceed with a state court foreclosure action. The creditor had obtained an order granting stay relief in a prior bankruptcy filed by the debtor’s son, the owner of the property. The debtor’s life estate interest in the property does not prevent the foreclosure action from proceeding. Opinion below.

Judge: Lloyd

Attorney for Debtor: Mark H. Flener

Attorney for Creditor: Bradley S. Salyer

USA, Insolvency & Restructuring, Litigation, Stoll Keenon Ogden PLLC