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    No safe harbor in a bankruptcy storm: mutuality “baked into the very definition of setoff”
    2010-08-10

    "Safe harbors" in the Bankruptcy Code designed to insulate nondebtor parties to financial contracts from the consequences that normally ensue when a counterparty files for bankruptcy have been the focus of a considerable amount of scrutiny as part of evolving developments in the Great Recession. One of the most recent developments concerning this issue in the courts was the subject of a ruling handed down by the New York bankruptcy court presiding over the Lehman Brothers chapter 11 cases. In In re Lehman Bros. Holdings, Inc., Judge James M.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Conflict of laws, Debtor, Security (finance), Fraud, Division of property, Swap (finance), Commodity, Debt, Concession (contract), Liquidation, Debtor in possession, US Congress, Lehman Brothers, United States bankruptcy court
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Insolvency exclusion of Professional Services Liability Coverage and professional services exclusion of Management Liability Insuring Agreement barred coverage for underlying litigation concerning Bernard Madoff’s Ponzi scheme
    2010-11-01

    Associated Community Bancorp, Inc. v. The Travelers Companies, Inc., 2010 U.S. Dist. LEXIS 34799 (D. Conn. Apr. 8, 2010)

    Filed under:
    USA, Insolvency & Restructuring, Insurance, Litigation, White Collar Crime, McCarter & English LLP, Bankruptcy, Security (finance), Breach of contract, Commodity, Liquidation
    Authors:
    Joseph J. Cherico , Jennifer Black Strutt
    Location:
    USA
    Firm:
    McCarter & English LLP
    Wolverine Tube files bankruptcy, hoping to confirm prearranged plan
    2010-11-20

    On October 31, 2010, Wolverine Tube, Inc. ("Wolverine") filed petitions for bankruptcy in the United States Bankruptcy Court for the District of Delaware. According to the Declaration of Wolverine's President in Support of Debtors' Petitions (the "Declaration"), the company's bankruptcy filing resulted from several factors, most notably a drop in cash due to volatility in commodity prices and high debt obligations. See Declaration at pp. 2-3.

    Filed under:
    USA, Insolvency & Restructuring, Fox Rothschild LLP, Bankruptcy, Commodity, Debt, Balance sheet, Delaware General Corporation Law, United States bankruptcy court, US District Court for District of Delaware
    Authors:
    L. Jason Cornell
    Location:
    USA
    Firm:
    Fox Rothschild LLP
    VeraSun Energy files 199 avoidance actions in bankruptcy court
    2010-11-16

    Introduction

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Fox Rothschild LLP, Bankruptcy, Limited liability company, Commodity, Limited liability partnership, Debt, Liquidation, Subsidiary, United States bankruptcy court, US District Court for District of Delaware
    Authors:
    L. Jason Cornell
    Location:
    USA
    Firm:
    Fox Rothschild LLP
    New Lehman plan portends coming battle for holders of derivatives-based claims
    2011-02-14

    On January 25, 2011, Lehman Brothers filed an amended version of its plan of liquidation (the Plan). Contrasted against its predecessor version, the Plan creates some winners and some losers in terms of the percentage of projected payouts to creditors of various Lehman entities. More important than the percentage distribution, however, may be the means by which the debtors seek to fix a creditor’s claim amount. With regard to claims based on derivatives contracts, Lehman proposes to take a novel – and for holders of those claims, potentially alarming – approach.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Eversheds Sutherland (US) LLP, Debtor, Commodity, Debt, Liability (financial accounting), Liquidation, Default (finance), Valuation (finance), Commodity market, Parent company, Lehman Brothers, United States bankruptcy court
    Location:
    USA
    Firm:
    Eversheds Sutherland (US) LLP
    PACA claims in bankruptcy
    2015-04-21

    The Perishable Agricultural Commodities Act of 1930 (“PACA”), as amended, 7 U.S.C. §§ 499(a)et seq. provides federal statutory protection to certain qualifying sellers of perishable agricultural products. Congress amended PACA in 1984 to establish a statutory trust for the benefit of all unpaid suppliers or sellers of perishable agricultural commodities or products.  PACA defines perishable agricultural commodities as “fresh fruit and fresh vegetables of every kind and character,” whether or not frozen or packed in ice, and cherries in brine. 7 USC § 499(b).

    Filed under:
    USA, Insolvency & Restructuring, DelCotto Law Group PLLC, Bankruptcy, Commodity
    Authors:
    Jamie L. Harris
    Location:
    USA
    Firm:
    DelCotto Law Group PLLC
    Bankruptcy "essentials" in a low-price environment
    2015-04-14

    J. Paul Getty once said, “Formula for success: rise early, work hard, strike oil.” However, with crude oil prices nearly half of what they were a mere six months ago, Getty’s formula may not hold as true as it once did. In the latest EIA STEO Report (April 2015), the DOE projects oil prices for WTI to remain around or below $60 per barrel for the balance of 2015 and grow to $70 per barrel in 2016.

    Filed under:
    USA, Insolvency & Restructuring, Reed Smith LLP, Bankruptcy, Debtor, Collateral (finance), Natural gas, Commodity
    Authors:
    Paul B. Turner , Craig R. Enochs , Melissa A. McGoogan
    Location:
    USA
    Firm:
    Reed Smith LLP
    Counterparty rights in energy bankruptcies
    2015-01-29

    For the past several years, low interest rates and higher commodity prices have resulted in generally favorable financial conditions in the energy sector, keeping energy bankruptcy activity to a minimum. With the recent sharp decline of prices in numerous commodities and forecasts of higher interest rates in the near future, there is a likelihood that the financial condition of some companies in the energy and commodities sectors could deteriorate significantly.

    Filed under:
    USA, Energy & Natural Resources, Insolvency & Restructuring, Eversheds Sutherland (US) LLP, Bankruptcy, Debtor, Commodity
    Authors:
    James M. Cain , Eric R. Fenichel , Catherine M. Krupka , David T. McIndoe , Richard G. Murphy, Jr. , Mark D. Sherrill
    Location:
    USA
    Firm:
    Eversheds Sutherland (US) LLP
    PACA and bankruptcy: what secured lenders must know
    2014-05-27

    Law360, New York (May 27, 2014, 4:11 PM ET) -- The Perishable Agricultural Commodities Act has many ramifications for secured lenders who provide financing to borrowers that own goods that fall within its scope, particularly in bankruptcy. Because PACA provides its beneficiaries — unpaid suppliers and sellers of perishable agricultural commodities and products — with superior rights over other creditors through the establishment of a trust, secured lenders must be careful not to rely on the standard language in bankruptcy orders that cleanse assets of liens.

    Filed under:
    USA, Banking, Company & Commercial, Insolvency & Restructuring, Choate Hall & Stewart LLP, Bankruptcy, Commodity, US District Court for the Southern District of New York
    Authors:
    Sean M. Monahan , Dallas Nicole Cruz
    Location:
    USA
    Firm:
    Choate Hall & Stewart LLP
    Court finds investment advisor’s payments to customers are not exempt from avoidance under section 546(e) of the Bankruptcy Code
    2013-03-07

    FCStone, a New York-based commodities brokerage firm, was recently ordered to return a transfer of $15.6 million to the bankruptcy estate of Sentinel Management Group. Approximately $1.1 million of this amount constituted a prepetition transfer of proceeds the debtor obtained from the sale of securities, which proceeds the debtor distributed to a certain segment of its customers, including FCStone.

    Filed under:
    USA, Illinois, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Collateral (finance), Security (finance), Commodity
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP

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