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    Federal court reassures secondary market
    2007-09-13

    A federal district court in New York has overturned a bankruptcy court decision that some say had threatened to disrupt the secondary market in claims against companies in bankruptcy. See Enron Corp. v. Springfield Associates, L.L.C., No. 01-16034 (S.D.N.Y., Aug. 27, 2007).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Reed Smith LLP, Bankruptcy, Threatened species, Limited liability company, Distressed securities, Enron, United States bankruptcy court, US District Court for the Southern District of New York
    Location:
    USA
    Firm:
    Reed Smith LLP
    Bidders beware: private-equity club deals could be challenged in bankruptcy
    2007-10-01

    The aggregate value of private-equity acquisitions worldwide in 2006 exceeded $660 billion. If this number seems mind-boggling, consider that this record-breaking volume of transactions appears well on the way to being eclipsed in 2007. Even with corporate financing for leveraged buyouts harder to come by as a consequence of the sub-prime mortgage fallout, there is, by some estimates, $300 billion sitting globally in private-equity funds. Already on tap or completed in 2007: a $32 billion takeover of energy company TXU Corp.

    Filed under:
    USA, Corporate Finance/M&A, Insolvency & Restructuring, Jones Day, Bankruptcy, Debtor, Private equity, Subprime lending, Anti-competitive practices, Leveraged buyout, Buyout, Bell Canada, Daimler AG, The Home Depot, Title 11 of the US Code
    Location:
    USA
    Firm:
    Jones Day
    Ignoring claims bar date can cost creditors cash
    2007-09-28

    Another court ruling on a missed bar date highlights the importance of ensuring your rights are protected. Failure to comply with a deadline to file a claim can have catastrophic consequences.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, BakerHostetler, Bankruptcy, Debtor, Unsecured debt, Title 11 of the US Code, United States bankruptcy court
    Location:
    USA
    Firm:
    BakerHostetler
    Bankruptcy court relies on market approach to determine prepetition solvency
    2007-09-25

    In a closely watched case against Motorola, Inc. arising out of the Iridium chapter 11 case, Judge James M. Peck of the Bankruptcy Court for the Southern District of New York has adopted a market approach to determining prepetition solvency, finding “insufficient cause to set aside the verdict of solvency and capital adequacy already given to Iridium by the public markets.” In his 111-page opinion1 Judge Peck agreed with the Third Circuit’s approach in VFB LLC v.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Public company, Bankruptcy, Private equity, Security (finance), Board of directors, Legal burden of proof, Capital requirement, Valuation (finance), Motorola, Third Circuit
    Location:
    USA
    Firm:
    Paul, Weiss, Rifkind, Wharton & Garrison LLP
    NAESB contract not protected by Bankruptcy Code safe harbor provisions
    2007-10-08

    The decision of the U.S. Bankruptcy Court in Hutson v. Smithfield Packing Co. (In re National Gas Distributors, LLC)1 poses potentially serious problems for parties trading gas under the North American Energy Standards Board (NAESB) base contract. The U.S. Court of Appeals for the Fourth Circuit will soon review this case of first impression about what constitutes a “swap agreement” under the expanded definition included in the U.S. Bankruptcy Code after the 2005 amendments.

    Filed under:
    USA, Derivatives, Energy & Natural Resources, Insolvency & Restructuring, Litigation, McDermott Will & Emery, Bankruptcy, Debtor, Fraud, Natural gas, Safe harbor (law), Swap (finance), Commodity, Involuntary dismissal, Market value, International Swaps and Derivatives Association, Title 11 of the US Code, United States bankruptcy court, Fourth Circuit
    Location:
    USA
    Firm:
    McDermott Will & Emery
    Second Circuit denies a creditors' committee standing to pursue an equitable subordination claim in bankruptcy
    2007-10-04

    In Official Committee of Unsecured Creditors v. Halifax Fund, L.P. (In re Applied Theory Corp.),1 the Second Circuit, in a per curiam opinion, held that an official committee of unsecured creditors (the "Committee"), under the circumstances, did not have the right to commence an adversary proceeding seeking the equitable subordination of claims held by insiders of a Chapter 11 debtor. The Applied Theory court rebuffed the Committee's characterization of its claim as a direct claim that the Committee could prosecute without the bankruptcy court's permission.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White & Case, Bankruptcy, Debtor, Unsecured debt, Interest, Consideration, Standing (law), Bright-line rule, Unsecured creditor, Derivative suit, Secured loan, Title 11 of the US Code, Trustee, Second Circuit, United States bankruptcy court, Seventh Circuit
    Location:
    USA
    Firm:
    White & Case
    Fourth Circuit sifts circumstances to deny a creditor any claim against a debtor where creditor received partial payment from a guarantor
    2007-10-04

    In National Energy & Gas Transmission, Inc. v. Liberty Electric Power, LLC (In re National Energy & Gas Transmission, Inc.),1 the Fourth Circuit held that, where an unsecured creditor receives payment from a non-debtor guarantor in partial satisfaction of a claim against the debtor, for purposes of the creditor's claim against the debtor, the creditor may not choose to allocate such payment to post-petition interest.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White & Case, Bankruptcy, Costs in English law, Surety, Debtor, Natural gas, Interest, Debt, Coal, Electricity, Electricity generation, Unsecured creditor, United States bankruptcy court, Fourth Circuit
    Location:
    USA
    Firm:
    White & Case
    Claims trading: can "bad acts" of the original creditor prevent the allowance of a claim sold to a third party?
    2007-10-04

    According to a recent decision by the United States District Court for the Southern District of New York,1 a claim sold post-petition is not subject to equitable subordination based solely on the original claimholder's conduct. Likewise, a claim sold post-petition cannot be disallowed based on the original claimholder's receipt of (and failure to repay) an avoidable transfer.

    Background

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White & Case, Bankruptcy, Debtor, Disability, Citibank, Enron, Title 11 of the US Code, United States bankruptcy court
    Location:
    USA
    Firm:
    White & Case
    Southern District of New York rules that non-impairment clauses do not apply in bankruptcy
    2007-10-04

    While many amendments to bond indentures can be made without consent from all bondholders, “non-impairment” clauses provide that the indenture may not be amended or restructured in any way that will affect or impair a bondholder’s right to receive principal and interest when due without unanimous consent.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Bond (finance), Bankruptcy, Debtor, Interest, Debt, Dissenting opinion, Default (finance), Stay of execution, Trustee, Second Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Lessons from Iridium: southern district bankruptcy judge dismisses $3.7 billion preference and fraudulent conveyance claims against Motorola
    2007-10-04

    On the Friday before Labor Day, Judge James Peck of the United States Bankruptcy Court for the Southern District of New York shocked the distressed bond market by dismissing the preference and fraudulent transfer counts of Iridium LLC Creditors Committee’s $3.7 billion adversary proceeding against Motorola, Inc. Judge Peck found that the Committee had failed to prove that Iridium was insolvent at any time—even the day before bankruptcy. Iridium’s $1.6 billion in bonds dropped from the mid-20s to low single digits in days.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Bond (finance), Bankruptcy, Market capitalisation, Breach of contract, Fiduciary, Fair market value, Warranty, Cashflow, Motorola, United States bankruptcy court, Third Circuit
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP

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