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    Recent bankruptcy decision highlights defenses against WARN Act claims
    2010-04-02

    A Mississippi Bankruptcy Court recently addressed several employer defenses to liability under the Worker Adjustment and Retraining Notification Act (“WARN Act”), which is noteworthy in the context of the current economy. In re FF Acquisition Corp. d/b/a Flexible Flyer, 423 B.R. 502 (Bankr. N.D. Miss. January 20, 2010).

    Filed under:
    USA, Mississippi, Employment & Labor, Insolvency & Restructuring, Litigation, Hunton Andrews Kurth LLP, Bankruptcy, Retail, Accounts receivable, Parent company, US Department of Labor, Worker Adjustment and Retraining Notification Act 1988 (USA), United States bankruptcy court
    Location:
    USA
    Firm:
    Hunton Andrews Kurth LLP
    California appellate court’s decision limits a creditor’s ability to bring a breach of fiduciary duty claim against directors of insolvent corporations
    2010-04-02

    On February 3, 2010, the California Supreme Court denied review of a significant decision by the California Court of Appeal, Sixth Appellate District, that limits a breach of fiduciary duty action brought by creditors against directors of an insolvent corporation under California law. Berg & Berg Enterprises, LLC v. Boyle, et al., 178 Cal. App. 4th 1020 (2009). California has now joined Delaware in holding that directors do not owe creditors a fiduciary duty, even when the corporation is operating in the so-called “zone of insolvency.”

    Filed under:
    USA, California, Insolvency & Restructuring, Litigation, Manatt Phelps & Phillips LLP, Conflict of interest, Bankruptcy, Shareholder, Breach of contract, Fiduciary, Board of directors, Good faith, Business judgement rule, California Supreme Court, California courts of appeal
    Location:
    USA
    Firm:
    Manatt Phelps & Phillips LLP
    CFTC creates separate bankruptcy account class for cleared otc derivatives
    2010-04-02

    The Commodity Futures Trading Commission has amended its bankruptcy rules (17 C.F.R. Part 190) to create a new “account class” for cleared over-the-counter (OTC) derivatives for purposes of calculating customer “net equity” and “allowed net equity” in the event of the bankruptcy of a futures commission merchant.

    Filed under:
    USA, Derivatives, Insolvency & Restructuring, Katten Muchin Rosenman LLP, Bankruptcy, Clearing (finance), Collateral (finance), Futures contract, Commodity broker, Over-the-counter (finance), US Securities and Exchange Commission, Commodity Futures Trading Commission (USA), Commodity Exchange Act 1936 (USA), Code of Federal Regulations
    Location:
    USA
    Firm:
    Katten Muchin Rosenman LLP
    Impact of hotel operators on distressed asset workouts
    2010-03-31

    A hotel property derives much of its value from its operator and brand. When a hotel owner is in distress with respect to its loan obligations, the operator also plays a critical role in the resolution of the workout process between the owner and the lender. The rights and obligations of the operator contained in its agreements with the owner and the lender affect any workout decision that the parties may make.

    Filed under:
    USA, Insolvency & Restructuring, Leisure & Tourism, Eversheds Sutherland (US) LLP, Bankruptcy, Debtor, Foreclosure, Joint venture, Cashflow, Default (finance), Leverage (finance)
    Authors:
    Victor P. Haley , Ellen S. Smith , David F. Reid
    Location:
    USA
    Firm:
    Eversheds Sutherland (US) LLP
    One's crisis is another's opportunity: section 363 sales
    2010-03-31

    One's Crisis is Another's Opportunity: Section 363 Sales With the increasing numbers of companies which were once thought to be giants of industry filing for bankruptcy, more opportunities to purchase major assets are becoming available to savvy buyers looking to expand their business or asset base. The Bankruptcy Code provides debtors with the ability to liquidate all or a part of their assets through court-supervised sales and buyers with the ability to obtain those assets at more favorable prices than they would pay if the sale were consummated outside of a bankruptcy.

    Filed under:
    USA, Insolvency & Restructuring, Sheppard Mullin Richter & Hampton LLP, Bankruptcy, Debtor, Liquidation, Due diligence, Barclays, Chrysler, Title 11 of the US Code, United States bankruptcy court
    Location:
    USA
    Firm:
    Sheppard Mullin Richter & Hampton LLP
    You’re only one illness away from bankruptcy: a discussion of healthcare reform and “medical bankruptcy”
    2010-03-31

    It has been reported that “medical bankruptcies” have been on the rise since 2001. There is no clear-cut definition for “medical bankruptcy,” but it has been summarily defined by the following terms:

    Filed under:
    USA, Healthcare & Life Sciences, Insolvency & Restructuring, Bricker & Eckler LLP, Bankruptcy, Costs in English law, Debtor, Health insurance, Debt, Administrative law, US House Committee on Energy and Commerce, US House Committee on the Judiciary, Affordable Care Act 2010 (USA), US Code, Health Care and Education Reconciliation Act 2010 (USA)
    Authors:
    Andria M. Beckham
    Location:
    USA
    Firm:
    Bricker & Eckler LLP
    In re Philadelphia Newspapers, LLC – uprooting three decades of secured creditor’s expectations?
    2010-03-30

    Overview

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Mayer Brown, Bankruptcy, Credit (finance), Debtor, Collateral (finance), Statutory interpretation, Interest, Federal Reporter, Debt, Fair market value, Secured creditor, Majority opinion, Title 11 of the US Code, United States bankruptcy court, Third Circuit
    Authors:
    Brian Trust , Thomas S. Kiriakos
    Location:
    USA
    Firm:
    Mayer Brown
    Electrical Components International files bankruptcy, seeking approval of prepackaged plan of reorganization
    2010-04-07

    Introduction

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Fox Rothschild LLP, Bankruptcy, Unsecured debt, Debt, Default (finance), United States bankruptcy court, US District Court for District of Delaware
    Authors:
    L. Jason Cornell
    Location:
    USA
    Firm:
    Fox Rothschild LLP
    Third Circuit rules that plan of reorganization proposing a sale of assets free and clear of liens need not allow secured lenders to credit bid at the sale
    2010-04-06

    In a recent split decision, a 2-1 majority for the United States Court of Appeals for the Third Circuit ruled that a debtor’s plan of reorganization that proposes a sale of assets free and clear of liens is not necessarily required to allow creditors whose loans are secured by those assets to credit bid at the sale. The majority decision in In re Philadelphia Newspapers, LLC, Nos. 09-4266, 09-4349, 2010 WL 1006647 (3d Cir. Mar. 22, 2010), which follows a similar decision from the United States Court of Appeals for the Fifth Circuit (see Bank of N.Y. Trust Co., NA v.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Greenberg Traurig LLP, Bankruptcy, Credit (finance), Debtor, Collateral (finance), Federal Reporter, Debt, Personal property, Secured loan, Title 11 of the US Code, United States bankruptcy court, Fifth Circuit, Third Circuit
    Authors:
    John Hutton
    Location:
    USA
    Firm:
    Greenberg Traurig LLP
    Fifth Circuit holds foreign representatives may bring foreign law avoidance actions under Chapter 15 of Bankruptcy Code
    2010-04-05

    The United States Court of Appeals for the Fifth Circuit on March 17, 2010 held that foreign representatives appointed in a foreign insolvency proceed-ing have the authority to bring a foreign law based avoidance action in an ancillary bankruptcy proceeding commenced under Chapter 15 of the Bankruptcy Code, reversing the lower court opinions.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Dechert LLP, Bankruptcy, Debtor, Liquidation, Subject-matter jurisdiction, US Code, Title 11 of the US Code, United States bankruptcy court, Fifth Circuit, US District Court for the Southern District of New York
    Location:
    USA
    Firm:
    Dechert LLP

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