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    District Court strikes down plan provision providing for payment of individual committee member professional fees
    2014-05-08

    The District Court for the Southern District of New York recently issued an opinion in Davis v. Elliot Management Corp. (In re Lehman Brothers Holdings Inc.), 2014 U.S. Dist. LEXIS 48102 (S.D.N.Y. Mar. 31, 2014) that will have important implications for individual members of official creditor committees in future cases. 

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Cooley LLP, Bankruptcy, US District Court for the Southern District of New York
    Location:
    USA
    Firm:
    Cooley LLP
    Bankruptcy Judge criticizes Bankruptcy Code section 546(e)
    2014-04-30

    The House Judiciary Subcommittee on Regulatory Reform, Commercial, and Antitrust Law recently held hearings regarding certain provisions of the Bankruptcy Code, including the safe harbor from preference and fraudulent conveyance claims for “settlement payments.”

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Cooley LLP, Bankruptcy, Security (finance), US House Committee on the Judiciary, Second Circuit, Third Circuit
    Location:
    USA
    Firm:
    Cooley LLP
    Recent decision underscores difference in treatment of landlord claims arising under section 503(b) versus 365(d)(3)
    2014-05-02

    In past print editions of Absolute Priority, we regularly reported on developments concerning the application of Bankruptcy Code provisions to the rights of landlords that lease non-residential real property to debtors operating in Chapter 11.  While these discussions typically focused on the treatment of a debtor’s rental obligations (and in particular, so-called “stub rent” owed by a debtor for the period beginning on the day that the bankruptcy petition is filed through the end of the month), considerable non-rental charges can also accrue under a lease on a postpetiti

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Cooley LLP, Landlord
    Location:
    USA
    Firm:
    Cooley LLP
    8th Circuit expands application of new value defense in preference actions
    2014-04-22

    On March 20, 2014, the Court of Appeals for the Eighth Circuit issued an important decision in Stoebner v. San Diego Gas & Electric Co. (In re LGI Energy Solutions Inc.), No. 12-3899, Slip Op. (8th Cir. Mar. 20, 2014) that expands the scope of the “subsequent new value” defense in lawsuits seeking to clawback alleged preference payments.

    Filed under:
    USA, Energy & Natural Resources, Insolvency & Restructuring, Litigation, Cooley LLP, Eighth Circuit
    Location:
    USA
    Firm:
    Cooley LLP
    What the U.S. Supreme Court’s unamimous decision in a homestead exemption case says about the power of bankruptcy courts in business cases
    2014-03-05

    It seems that most bankruptcy decisions by the U.S. Supreme Court involve individual debtors, and the Supreme Court’s latest opinion is no exception. Even though the decision is not in a business bankruptcy case, it examines the bankruptcy court’s powers under Section 105(a) of the Bankruptcy Code.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cooley LLP, Bankruptcy, Debtor, Title 11 of the US Code, Supreme Court of the United States, United States bankruptcy court
    Authors:
    Robert Eisenbach
    Location:
    USA
    Firm:
    Cooley LLP
    Delaware court puts the brakes on Hybrid Tech’s credit bid for bankrupt Fisker Automotive’s assets
    2014-02-13

    Last Friday, Judge Sleet of the U.S. District Court for the District of Delaware denied Hybrid Tech Holdings LLC’s appeal of the Delaware bankruptcy court’s decision in In re Fisker Automotive Holdings, Inc. et al, to (i) cap Hybrid Tech’s credit bid for Fisker Automotive’s assets, and (ii) require that the assets be sold via a public auction rather than directly to Hybrid Tech in a private sale.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cooley LLP, Secured loan, US Department of Energy, United States bankruptcy court, Third Circuit
    Location:
    USA
    Firm:
    Cooley LLP
    Key decision allows massive Lyondell shareholder clawback litigation to move forward
    2014-01-29

    On January 14, 2014, Judge Robert E.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cooley LLP, Federal preemption, Shareholder, United States bankruptcy court
    Location:
    USA
    Firm:
    Cooley LLP
    Pennsylvania court bucks Third Circuit trend in ruling that bankruptcy courts lack authority to issue final order in fraudulent transfer lawsuits
    2014-01-21

    In a departure from other bankruptcy courts in the Third Circuit and her own recent prior opinion, U.S. Bankruptcy Chief Judge Mary France of the Middle District of Pennsylvania broadly interpreted the U.S. Supreme Court’s ruling in Stern v. Marshall, 564 U.S. 2 (2011), and held that a bankruptcy court lacks the constitutional authority to issue a final judgment in any fraudulent transfer action where the defendant (i) has not filed a proof of claim and (ii) has not consented to the bankruptcy judge entering a final judgment on the matter. 

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cooley LLP, Westlaw, US Constitution, Ninth Circuit, United States bankruptcy court, Third Circuit
    Location:
    USA
    Firm:
    Cooley LLP
    Court determines that DIP lender’s superpriority administrative claim takes priority over claims of a Chapter 7 trustee
    2014-01-13

    The Bankruptcy Court for the Southern District of Florida recently issued an important decision for administrative creditors in chapter 11 cases and chapter 7 cases alike.  In In re National Litho, LLC, 2013 WL 2303786 (Bankr. S.D. Fla.

    Filed under:
    USA, Florida, Insolvency & Restructuring, Litigation, Cooley LLP, Debtor in possession, United States bankruptcy court
    Location:
    USA
    Firm:
    Cooley LLP
    Fifth Circuit rules that debtor’s plan failed to effectively preserve post-confirmation causes of action
    2014-01-15

    The Bankruptcy Code provides debtors in possession and other potential plan proponents with considerable flexibility to implement a plan under chapter 11. An important consideration is the preservation of potentially valuable causes of action held by the estate and the provision of a vehicle for post-confirmation prosecution of such claims.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cooley LLP, Debtor, Common law, Fifth Circuit
    Location:
    USA
    Firm:
    Cooley LLP

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