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    Not All Commitments Are Treated Equal
    2020-01-31

    In recent weeks, a number of transactions have come across our desks involving levered feeders set up as an investment vehicle for insurance-related investors. For regulatory reasons, these vehicles are established such that each such investor’s commitment is comprised of both a loan commitment (the “Debt Commitment”) and an equity commitment (the “Equity Commitment”). This structure presents a challenge for lenders trying to balance the requested borrowing base treatment for investor commitments of this type against the potential bankruptcy implications that this structure poses.

    Filed under:
    USA, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Debtor, Private equity, Investment funds
    Authors:
    Tim Hicks
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Fraudulent Transfer Claims Avoid State Sovereign Immunity, But Only If a Property Interest Exists Under State Law
    2020-01-31

    In a recent decision, In re Philadelphia Entertainment and Development Partners, L.P., No. 14-000255-mdc (Bankr. E.D. Pa. Dec. 31, 2019), the Bankruptcy Court for the Eastern District of Pennsylvania held that state sovereign immunity does not prevent bankruptcy courts from hearing fraudulent transfer claims against states.

    Filed under:
    USA, Pennsylvania, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, Debtor
    Authors:
    Ronit J. Berkovich , Patrick Feeney
    Location:
    USA
    Firm:
    Weil Gotshal & Manges LLP
    Delaware Court Holds Enforcement of Intercreditor Agreement Does not Breach Duty of Good Faith and Fair Dealing
    2020-01-28

    In LNV Corporation v. Ad Hoc Group of Second Lien Creditors (In re La Paloma Generating Company, LLC, Adv. Pro. No 19-50110 (JTD) (D. Del. January 13, 2020), a Delaware bankruptcy court recently held that actions taken by a senior secured creditor to enforce its rights under an intercreditor agreement did not constitute a breach of the duty of good faith and fair dealings owed to the junior lienholders. The circumstances in La Paloma are not uncommon.

    Background

    Filed under:
    USA, Delaware, Banking, Insolvency & Restructuring, Litigation, FisherBroyles LLP, Debtor
    Authors:
    H. Joseph Acosta
    Location:
    USA
    Firm:
    FisherBroyles LLP
    Supreme Court Affirms Sixth Circuit: Bankruptcy Stay-Relief Denials Immediately Appealable
    2020-01-28

    In a unanimous decision affirming the Sixth Circuit, the Supreme Court held that creditors have 14 days to appeal a bankruptcy court’s denial of relief from the automatic stay. In one of the term’s first decisions, Justice Ginsburg’s opinion in Ritzen Group, Inc. v.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Debtor, United States bankruptcy court
    Authors:
    Benjamin Beaton
    Location:
    USA
    Firm:
    Squire Patton Boggs
    A Look Back at Mass Tort Bankruptcy Cases in 2019 - Asbestos and Beyond
    2020-01-22

    Only two asbestos bankruptcy cases were filed in 2019 – the lowest number in any one year since Congress enacted the special asbestos bankruptcy trust/channeling injunction statute, Section 524(g) of the Bankruptcy Code.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Crowell & Moring LLP, Bankruptcy, Debtor, United States bankruptcy court
    Authors:
    Mark D. Plevin , Tacie H. Yoon
    Location:
    USA
    Firm:
    Crowell & Moring LLP
    A Growing Consensus Emerges on the Calculation of Postpetition Interest
    2020-01-24

    Key Takeaways:

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Proskauer Rose LLP, Debtor, Title 11 of the US Code
    Authors:
    Vincent Indelicato , Daniel Desatnik
    Location:
    USA
    Firm:
    Proskauer Rose LLP
    Supreme Court Resolves the Appealability of Orders Denying Relief from the Automatic Stay
    2020-01-24

    When a debtor files for bankruptcy, the Bankruptcy Code provides for an automatic stay of almost all proceedings to recover property from the debtor. See 11 U.S.C. § 362(a). A party in interest can seek an order exempting it from the automatic stay for cause. 11 U.S.C. § 362(d). A creditor that fails to obtain relief from the stay is limited to the claim-adjudication process in bankruptcy court. What happens if the bankruptcy court rules against a creditor seeking relief from the automatic stay, and the creditor seeks to appeal?

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Patterson Belknap Webb & Tyler LLP, Debtor
    Authors:
    Jonah Wacholder , Daniel A. Lowenthal
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP
    Supreme Court Will Tell Us Soon if Creditor Violates Automatic Stay by Passively Retaining Debtor’s Property
    2020-01-27

    The United States Supreme Court has granted certiorari on an issue that has greatly divided Circuit Courts of Appeal – the question of whether an entity that retains possession of a debtor’s property has an affirmative obligation to return that property to the debtor or trustee immediately upon the filing of the bankruptcy petition or risk being in violation of the automatic stay.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, Debtor, Supreme Court of the United States
    Authors:
    Ronit J. Berkovich
    Location:
    USA
    Firm:
    Weil Gotshal & Manges LLP
    New Trends Emerge for ‘Consensual’ Third-Party Releases in the Southern District of New York and District of Delaware
    2020-01-17

    A survey of recent rulings by judges from the bankruptcy courts for the Southern District of New York and the District of Delaware suggests that judges in these districts have very different views about the nature and extent of “consensual” third-party releases that may be approved in a given case. The data also indicates that their thinking on this issue continues to evolve as they confront new arguments.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Skadden Arps Slate Meagher & Flom LLP, Bankruptcy, Debtor, US District Court for District of Delaware, US District Court for the Southern District of New York
    Authors:
    Shana A. Elberg , Christine A. Okike , Bryan Kotliar
    Location:
    USA
    Firm:
    Skadden Arps Slate Meagher & Flom LLP
    Maybe Borrowers Can Escape Student Loan Debt: New York Bankruptcy Court Reinterprets the Brunner Undue Hardship Test
    2020-01-17

    A New York bankruptcy court recently allowed a pro se debtor to discharge over $200,000 in student loan debt, vehemently rejecting as “punitive” more recent legal authority concerning how student loan debts may be discharged in bankruptcy.

    Filed under:
    USA, New York, Banking, Insolvency & Restructuring, Litigation, Troutman Pepper, Debtor, United States bankruptcy court
    Authors:
    Allison A. Melton , David M. Gettings
    Location:
    USA
    Firm:
    Troutman Pepper

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