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    What To Do If You Are Sued for a Preferential Payment by a Bankruptcy Trustee
    2019-09-24

    When one of your customers files bankruptcy, it can cause significant disruption in your own business, especially where you do substantial business with that customer, or it files for bankruptcy owing you a substantial amount of money. The impact on your business includes not only the prospect of not being paid or receiving very little on unpaid invoices but also the loss of future business from the bankrupt customer.

    Filed under:
    USA, Banking, Company & Commercial, Corporate Finance/M&A, Insolvency & Restructuring, Law Department Management, Legal Practice, Macelree Harvey Ltd, Title 11 of the US Code
    Authors:
    Leo M. Gibbons
    Location:
    USA
    Firm:
    Macelree Harvey Ltd
    “Retail Apocalypse: The End - Or A New Beginning?”
    2019-09-25

    The last several years have been treacherous for the retail sector. Changing shopping patterns and shifting demographics have led some commentators to declare that the (retail) apocalypse is upon us.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, Goulston & Storrs PC, Debtor
    Authors:
    Trevor Hoffmann
    Location:
    USA
    Firm:
    Goulston & Storrs PC
    7th Circuit Rules on Sufficiency of UCC Financing Statement
    2019-09-27

    Secured creditors filing a UCC financing statement under Article 9 must include a description of the collateral. (UCC 9-502) UCC Article 9 adopts a “notice filing” system, under which the purpose of the filing is to provide notice of a security interest in the specified collateral. UCC Article 9 does not require a precise (e.g., serial number) description. Even so, there has been much litigation over the sufficiency of the collateral descriptions in UCC financing statements.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Masuda Funai Eifert & Mitchell Ltd, Seventh Circuit
    Authors:
    Kenton P. Knop , Stephen M. Proctor
    Location:
    USA
    Firm:
    Masuda Funai Eifert & Mitchell Ltd
    Ninth Circuit Limits Substantive Consolidation
    2019-09-12

    “[A] party moving for substantive consolidation must provide notice of the motion to the creditors of a putative consolidated non-debtor,” held the U.S. Court of Appeals for the Ninth Circuit on Sept. 9, 2019. In re Mihranian, 2019 WL 4252115 (9th Cir. Sept. 9, 2019) (emphasis added).

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Debtor, Title 11 of the US Code, Ninth Circuit
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    PG&E Bankruptcy Judge to FERC: What Part of “Exclusive” Jurisdiction Do You Not Understand?
    2019-09-12

    U.S. Bankruptcy Judge Dennis Montali recently ruled in the Chapter 11 case of Pacific Gas & Electric (“PG&E”) that the Federal Energy Regulatory Commission (“FERC”) has no jurisdiction to interfere with the ability of a bankrupt power utility company to reject power purchase agreements (“PPAs”).

    Filed under:
    USA, Banking, Energy & Natural Resources, Insolvency & Restructuring, Litigation, Kelley Drye & Warren LLP, Debtor, FERC
    Authors:
    Benjamin D. Feder
    Location:
    USA
    Firm:
    Kelley Drye & Warren LLP
    FDIC and OCC critique Madden in amicus brief
    2019-09-13

    On September 10, the FDIC and the OCC filed an amicus brief in the U.S.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Orrick, Herrington & Sutcliffe LLP, Debtor, Office of the Comptroller of the Currency (USA), Federal Deposit Insurance Corporation (USA)
    Location:
    USA
    Firm:
    Orrick, Herrington & Sutcliffe LLP
    11th Cir. Holds No Violation of Bankruptcy Discharge for ‘Informational Statement’
    2019-09-19

    The U.S. Court of Appeals for the Eleventh Circuit recently affirmed the bankruptcy court’s denial of a debtor-borrower’s motion for sanctions, which alleged that her mortgage loan servicer violated her bankruptcy discharge by mailing a communication in a purported attempt to collect upon a discharged debt.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Maurice Wutscher LLP, Debtor, Title 11 of the US Code, Fair Debt Collection Practices Act 1977 (USA)
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    SCOTUS Determines Trademark Licensee’s Rights Survive Rejection by Debtor in Bankruptcy
    2019-09-06

    A debtor has the right to assume or reject any executory contract or unexpired lease through its bankruptcy, pursuant to the Bankruptcy Code. A trademark license is an executory contract that is subject to assumption or rejection if performance remains due from both parties to the contract. A debtor will reject a trademark license if it believes that there is no net benefit to the counterparty to the contract continuing to perform its obligations and thereby will repudiate any further performance of its obligations.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Trademarks, FisherBroyles LLP, Debtor, Title 11 of the US Code, Supreme Court of the United States
    Authors:
    H. Joseph Acosta
    Location:
    USA
    Firm:
    FisherBroyles LLP
    5th Circuit Upholds Subordination of Deemed Dividends Under Section 510(b)
    2019-09-11

    In In re Linn Energy, LLC, 2019 WL 4149481 (5th Cir. Sept. 3, 2019), the Fifth Circuit recently reminded us that if a debt instrument looks like a security and quacks like a security, it likely is a security for purposes of subordination under section 510(b) of the Bankruptcy Code. The implications of characterizing an instrument as a security under section 510(b) is that any claim arising therefrom is subject to subordination to general unsecured creditors.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, FisherBroyles LLP, Title 11 of the US Code, Fifth Circuit
    Authors:
    H. Joseph Acosta
    Location:
    USA
    Firm:
    FisherBroyles LLP
    Chapter 11 Bankruptcy Uses and Strategies—What Can Be Accomplished?
    2019-08-28

    Prognostications of an impending recession are appearing in regular dispatches ranging from daily news media to quarterly economic reports. Like the Great Recession, the if and when of any recession will only be answered after it has occurred. Moreover, these conclusions are simply an aggregation of the particular experience of a wide-range of industries, and diverse and distinct companies within those industries. What is true today for each of those individual companies is that their particular economic ecosystem is changing rapidly, and often with increasing financial challenges.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Fredrikson & Byron PA
    Authors:
    Ryan T. Murphy
    Location:
    USA
    Firm:
    Fredrikson & Byron PA

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