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 post-petition interest and costs, including reasonable legal fees, if their documentation provides them with the right to recover these costs. But what about unsecured creditors – are post-petition legal fees incurred by an unsecured creditor whose contract with the debtor provides for reimbursement of legal fees allowed or not?

Last year, a California Bankruptcy Court wiped out $10.2 million in default interest (“DRI”) when it ruled that a 5% DRI was an unenforceable penalty in a Chapter 11 bankruptcy case where the construction lender fully recovered principal, interest, and other costs of collection.

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 subordination agreement that is silent on the use of Rule 2004 prevent the subordinated creditor from taking a Rule 2004 examination of the senior creditor? Yes, says an Illinois bankruptcy court.

Credit servicing firms, the Bankers' Book Evidence Acts 1879-1959 (“BBEA”), and the evidential requirements of an application for summary judgment were recently considered by the High Court in Promomtoria (Aran) Ltd v Burns. 1 The decision issued by Noonan J shows a practical use of Order 37 of the Rules of the Superior Courts in managing evidential requirements, where the BBEA cannot be utilised.

Background

The Irish Government is planning to take measures in the areas of settlement finality, insurance, and insurance distribution in the event of a 'no-deal Brexit'. The relevant measures are set out in Parts 7 and 8 of the Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Bill 2019 (the “Withdrawal Bill”), which was published on 22 February 2019. These measures are in addition to a number of measures already taken at EU level.

Settlement Finality

Certainty is a key element in any business planning. For corporate restructuring practitioners who are planning or working on cross border transactions, the uncertainty relating to Brexit and the departure of the United Kingdom from the European Union ("EU") may have long-term significant consequences and a "no-deal" Brexit (without a withdrawal agreement and the certainty of a transition period) will have immediate and significant consequences for any such cross-border transaction.

Certainty is a key element in any business planning. For corporate restructuring practitioners who are planning or working on cross border transactions, the uncertainty relating to Brexit and the departure of the United Kingdom from the European Union (“EU”) may have long-term significant consequences and a “no-deal” Brexit (without a withdrawal agreement and the certainty of a transition period) will have immediate and significant consequences for any such cross-border transaction. 

Can a profit-sharing provision in a commercial lease survive assumption and assignment by a debtor? Analyzing such a provision, the Third Circuit answered “no,” finding the provision to constitute an unenforceable anti-assignment provision. Haggen Holdings, LLC v. Antone Corp, 739 Fed. Appx. 153 (2018).

Legal and Factual Background

Equitable mootness is a judicially created doctrine often applied in appeals from orders of bankruptcy courts confirming chapter 11 plans of reorganization. In instances where granting relief on appeal would result in overturning the confirmation order and therefore unravelling a substantially consummated chapter 11 plan, appellate courts have, in certain circumstances, abstained from deciding appeals in reliance on equitable mootness.

After Energy Future Holdings (EFH), maybe not so much. The size of the break-up fee approved by the bankruptcy court in EFH was undoubtedly large by any account – US$275 million. But it was approved following all necessary filings, notice and hearings. All parties and counsel involved were highly sophisticated and experienced. The court that approved the fee was the Delaware bankruptcy court, by all accounts one of the most experienced and sophisticated bankruptcy courts in the nation. And there wasn’t even a hint of fraud, misrepresentation or failure to disclose material facts.