On May 3, 2021, Judge Marvin Isgur of the United States Bankruptcy Court for the Southern District of Texas held that indenture trustees must satisfy the “substantial contribution” standard to obtain administrative expense status for their fees and expenses incurred in a chapter 11 case. In his ruling, Judge Isgur expressly rejected the indenture trustee’s argument that it could obtain administrative expense status upon a showing that its fees and expenses were an actual, necessary cost of preserving the debtor’s estate.

On May 11, 2021, the United States Bankruptcy Court for the Northern District of Texas (“Court”) issued a decision[1] dismissing the chapter 11 cases of the National Rifle Association of America and its affiliate (“NRA”) for cause pursuant to section 1112(b) of the Bankruptcy Code.

Chapter 11 plans commonly protect a debtor’s key stakeholders that participate in the chapter 11 process from claims arising in connection with the bankruptcy case. The Office of the United States Trustee (the “US Trustee”), the branch of the Department of Justice tasked with monitoring bankruptcy cases, has recently taken aim at limiting the use and scope of these “exculpation” provisions in large restructuring cases across the country.

Background and Standards

On April 19, 2021, the United States Supreme Court denied a petition for certiorari from the Second Circuit’s decision in In re Tribune Company Fraudulent Conveyance Litigation (“Tribune II”),[1] leaving intact the Second Circuit’s decision upholding the safe harbor defense to avoidance actions und

“The discharge of claims in bankruptcy applies with no less force to claims that are meritorious, sympathetic, or diligently pursued. Though the result may chafe one’s innate sense of fairness, not all unfairness represents a violation of due process.”

On March 19, 2021, the United States Court of Appeals for the Third Circuit issued a unanimous decision[1] affirming that the mutuality requirement of section 553(a) of the Bankruptcy Code must be strictly construed and, therefore, that triangular setoffs are not permissible in bankruptcy.

Karen McMaster, Ben Andrews and James Cameron, Milbank LLP

This is an extract from the 2020 edition of GRR's the Europe, Middle East and Africa Restructuring Review. The whole publication is available here.

In summary

Cristóbal Eyzaguirre B, Rodrigo Ochagavía R-T and Santiago Bravo S, Claro & Cia

This is an extract from the 2021 edition of GRR's The Americas Restructuring Review. The whole publication is available here.

In summary

DJ Miller, Thornton Grout Finnigan

This is an extract from the 2021 edition of GRR's The Americas Restructuring Review. The whole publication is available here.

In summary

This chapter highlights the flexible nature of Canada’s restructuring regime, where creative solutions to novel and complex issues are welcomed by the judiciary.

Discussion points

Luiz Fernando Valente de Paiva, Giuliano Colombo, Andre Marques, Carolina Kiyomi Iwamoto and Ana Beatriz Araujo Ribeiro do Valle, Pinheiro Neto Advogados

This is an extract from the 2021 edition of GRR's The Americas Restructuring Review. The whole publication is available here.

In summary