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    Farley's reflections: sunrise, sunset
    2011-09-08

    Sunrise, sunset. Perhaps a matchmaker would have helped. The saga of the dispute between Ventas, Inc. and Health Care Property Investors, Inc. arose five years ago when Sunrise Senior Living Real Estate Investment Trust’s "board of trustees determined that a strategic sale process of its assets would be beneficial to its unitholders, thus effectively putting Sunrise ‘in play’ on the public markets" (per Blair J.A. for the Ontario Court of Appeal) in Ventas, Inc. v.

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, McCarthy Tétrault LLP, Fraud, Tortious interference, Real estate investment trust, Anti-competitive practices, Coercion, Trustee, Court of Appeal of England & Wales, Court of Appeal for Ontario
    Authors:
    James Farley
    Location:
    Canada
    Firm:
    McCarthy Tétrault LLP
    Scheme of arrangement/reduction of capital
    2010-04-21

    In the matter of a Representation by Computer Patent Annuities Holdings Limited and in the matter of Part 18A of the Companies (Jersey) Law 1991 [2010]JRC021

    Introduction

    This case, heard by the Royal Court in Jersey, involved the approval of a scheme of arrangement pursuant to Article 125 of the Companies (Jersey) Law 1991 (the "Companies Law"), together with the confirmation of a reduction of share capital.

    Background

    Filed under:
    Jersey, Company & Commercial, Insolvency & Restructuring, Litigation, Bedell Cristin, Shareholder, Waiver, Consideration, Good faith, Preferred stock, Coercion
    Location:
    Jersey
    Firm:
    Bedell Cristin
    Notification injunction to protect against dissipation of assets
    2016-06-28

    A possible alternative to the freezing injunction.

    A judgment has recently provided helpful guidance on a creative form of injunction. The “notification order” compels a defendant to give notice to the claimant before disposing or dealing with its assets. This notification order is less onerous than a freezing injunction, and although it usually accompanies the freezing injunction, in this case, the order was issued as standalone relief. The notification would alert the claimant to apply for a freezing injunction prior to dissipation of any assets.

    Filed under:
    United Kingdom, Company & Commercial, Insolvency & Restructuring, Litigation, Morgan, Lewis & Bockius LLP, Share (finance), Injunction, Good faith, Prima facie, Coercion
    Authors:
    David Waldron , Jessica Piper
    Location:
    United Kingdom
    Firm:
    Morgan, Lewis & Bockius LLP
    LLC agreement prohibiting bankruptcy filing held enforceable
    2010-12-14

    Courts generally agree that pre-petition agreements to forgo the protec-tions of bankruptcy are invalid as against public policy. A recent Tenth Cir-cuit Bankruptcy Appellate Panel decision calls this accepted premise into question by holding that provisions contained in a limited liability company agreement that expressly barred the company, and restricted the manager, from filing a bankruptcy petition were enforceable. DB Capital Holdings, LLC v. Aspen HH Ventures, LLC (In re DB Capital Holdings, LLC), No. 10-046, 2010 Bankr. LEXIS 4176 (B.A.P. 10th Cir., Dec.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Dechert LLP, Bankruptcy, Conflict of laws, Debtor, Limited liability company, Coercion, United States bankruptcy court, Bankruptcy Appellate Panel, Tenth Circuit
    Location:
    USA
    Firm:
    Dechert LLP
    Bankruptcy panel enforces LLC agreement's prohibition on bankruptcy filing
    2011-01-17

    A Bankruptcy Appellate Panel (BAP) of the Tenth Circuit recently upheld a bankruptcy court’s dismissal of an LLC’s Chapter 11 bankruptcy petition on the ground that the LLC’s operating agreement barred the LLC from filing for bankruptcy. DB Capital Holdings, LLC v. Aspen HH Ventures, LLC (In re DB Capital Holdings, LLC), No. CO-10-046, 2010 Bankr. LEXIS 4176 (B.A.P. 10th Cir., Dec. 6, 2010).

    Filed under:
    USA, Company & Commercial, Insolvency & Restructuring, Litigation, Stoel Rives LLP, Bankruptcy, Debtor, Limited liability company, Standing (law), Coercion, United States bankruptcy court, Bankruptcy Appellate Panel, Tenth Circuit
    Location:
    USA
    Firm:
    Stoel Rives LLP
    Bankruptcy dismissed: debtor's operating agreement bars a bankruptcy filing
    2011-04-25

    It is commonly known that a borrower's agreement with a third party not to file a bankruptcy case is unenforceable due to public policy considerations. Accordingly, lenders have searched for ways to make it difficult or painful for their borrowers to file for bankruptcy, such as imposing the requirement that prior authorization of an independent director or member be a prerequisite to a bankruptcy filing by the borrower, or requiring the borrower's principal to execute a non-recourse carve-out guaranty that would impose personal liability should the borrower file for bankruptcy.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Herrick Feinstein LLP, Bankruptcy, Debtor, Limited liability company, Adoption, Condominium, Coercion, United States bankruptcy court, Bankruptcy Appellate Panel, Tenth Circuit
    Authors:
    Paul Rubin
    Location:
    USA
    Firm:
    Herrick Feinstein LLP
    Attacks on loan to own strategies continue
    2014-05-15

    As the economy continues to emerge from the global recession in the late 2000s, one of the prevailing trends we have seen is the continuation of challenges to distressed investors that have employed a “loan-to-own” strategy. Boiled to its basics, the loan to own strategy is a method of investing by a distressed investor — frequently a private equity or hedge fund — that acquires the secured debt of a borrower at a discount (often deep) with the hope of either being paid at par or using the par value of the secured debt to acquire the company.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, Bilzin Sumberg, Bankruptcy, Private equity, Hedge funds, Distressed securities, Coercion
    Authors:
    Jay M. Sakalo
    Location:
    USA
    Firm:
    Bilzin Sumberg
    Enron’s prematurity redemptions of commercial paper are not avoidable in bankruptcy
    2011-09-13

    The U.S. Court of Appeals for the Second Circuit recently held that prematurity redemptions of commercial paper made by Enron Corp. shortly before it filed for bankruptcy were protected from avoidance by 11 U.S.C. § 546(e)’s safe harbor for securities transaction settlement payments. In re Enron Creditors Recovery Corp. v. Alfa., No. 09-5122-bk (2d Cir. June 28, 2011). In so doing, the Second Circuit resolved a clash between the Bankruptcy Code’s interest in avoiding preferential debt repayment and the securities industry’s interest in preserving transaction finality.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, Chadbourne & Parke LLP, Bankruptcy, Security (finance), Safe harbor (law), Debt, Maturity (finance), Fair market value, Broker-dealer, Line of credit, Accrued interest, Coercion, Commercial paper, Enron, US Code, Second Circuit, United States bankruptcy court
    Authors:
    Scott S. Balber , Marcelo M. Blackburn
    Location:
    USA
    Firm:
    Chadbourne & Parke LLP
    Third Circuit clarifies degree of control necessary to be an insider
    2009-04-27

    A recent opinion from the U.S. Court of Appeals for the Third Circuit confirms that “actual control” over a debtor is not necessary to qualify as a nonstatutory “insider” for the purpose of extending the period for preference recovery under Section 547 of the Bankruptcy Code. See Schubert v. Lucent Technologies, Inc. (In re Winstar Communications, Inc.), 554 F.3d 382 (3rd Cir. 2009).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Reed Smith LLP, Debtor, Breach of contract, Federal Reporter, Debt, Coercion, US Code, Trustee, United States bankruptcy court, Third Circuit
    Authors:
    Ann E. Pille
    Location:
    USA
    Firm:
    Reed Smith LLP
    LLC agreement prohibiting bankruptcy filing held enforceable
    2010-12-14

    Courts generally agree that pre-petition agreements to forgo the protec-tions of bankruptcy are invalid as against public policy. A recent Tenth Cir-cuit Bankruptcy Appellate Panel decision calls this accepted premise into question by holding that provisions contained in a limited liability company agreement that expressly barred the company, and restricted the manager, from filing a bankruptcy petition were enforceable. DB Capital Holdings, LLC v. Aspen HH Ventures, LLC (In re DB Capital Holdings, LLC), No. 10-046, 2010 Bankr. LEXIS 4176 (B.A.P. 10th Cir., Dec.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Dechert LLP, Bankruptcy, Conflict of laws, Debtor, Limited liability company, Coercion, United States bankruptcy court, Bankruptcy Appellate Panel, Tenth Circuit
    Location:
    USA
    Firm:
    Dechert LLP
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