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    Applying Jevic (Part 3): How Courts Are Interpreting and Applying the Supreme Court’s Ruling on Structured Dismissals and Priority Skipping
    2019-12-31

    The Bankruptcy Protector has previously provided a succinct summary of all cases decided post-Jevichere and

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Nelson Mullins Riley & Scarborough LLP, Debtor
    Authors:
    Shane G. Ramsey , John T. Baxter
    Location:
    USA
    Firm:
    Nelson Mullins Riley & Scarborough LLP
    Fifth Circuit Restricts Double Recovery in Fraudulent Transfer Action
    2019-12-31

    The laws of preferential and fraudulent transfers under the Bankruptcy Code can often seem theoretical and formulaic. When certain boxes are checked, it appears, at first blush, that a pre-bankruptcy transfer can be avoided, regardless of any intent or surrounding circumstances.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, White Collar Crime, FisherBroyles LLP, Debtor, Title 11 of the US Code, Fifth Circuit
    Authors:
    H. Joseph Acosta
    Location:
    USA
    Firm:
    FisherBroyles LLP
    Bankruptcy Courts Don’t Need to Hold an Evidentiary Hearing in Order to Appoint a Chapter 11 Trustee
    2020-01-02

    The U.S. Bankruptcy Code allows debtors to stay in control of their businesses in chapter 11. But the Code also empowers bankruptcy judges to replace a debtor’s management in certain circumstances with an outside trustee. This will happen if either cause exists to expel management or appointing a trustee is in the best interests of creditors, any equity holders, and other interests of the estate. 11 U.S.C. § 1007. Judges don’t need to hold an evidentiary hearing to appoint a trustee, but the decision to do so must be based on clear and convincing evidence.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Patterson Belknap Webb & Tyler LLP, Debtor
    Authors:
    Daniel A. Lowenthal
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP
    Harley-Davidson Dealer Violates Automatic Stay, Goes from Creditor to Judgment Debtor
    2019-12-13

    If you lend money, you know – or should know – it is a cardinal sin to collect a debt or repossess collateral after a borrower files bankruptcy.

    Bankruptcy triggers the automatic stay – a command, not a suggestion, that collection activity cease. This is common knowledge, but every once in a while a case comes along that merits sharing as a reminder of what happens when lenders ignore the Bankruptcy Code.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Ward and Smith, PA, Debtor
    Authors:
    Lance P. Martin
    Location:
    USA
    Firm:
    Ward and Smith, PA
    Cannabis and Bankruptcy: 2019 in Review
    2019-12-17

    Courts struggled this year to find a balance between state-licensed cannabis activity and the federal right to seek bankruptcy protection under the Bankruptcy Code. During 2019, we had the first circuit-level opinion in the bankruptcy/cannabis space that appeared to open the door to bankruptcy courts, albeit slightly. We also had lower court opinions slamming that door shut. Below, we look at a few of the most important decisions issued throughout 2019 and analyze the current state of the law.

    The Ninth Circuit Court of Appeals’ Garvin Decision

    Filed under:
    USA, Healthcare & Life Sciences, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Debtor, Cannabis, Title 11 of the US Code
    Authors:
    Mark A. Salzberg
    Location:
    USA
    Firm:
    Squire Patton Boggs
    The Sixth Circuit Shifts Some Power from the Bankruptcy Court Back to FERC in Determining Whether Rejection of Power Purchase Agreements is Appropriate
    2019-12-18

    On December 12, 2019, the United States Court of Appeals for the Sixth Circuit (the “Sixth Circuit”) issued a long awaited decision in the dispute between FirstEnergy Solutions Corp. (“FirstEnergy”), the Federal Energy Regulatory Commission (“FERC”) and certain power purchase contract counterparties, including the Ohio Valley Electric Corporation (“OVEC”).1 The decision helps clarify a murky area of jurisprudence and has significant implications for restructurings in the electric power sector.

    Filed under:
    USA, Energy & Natural Resources, Insolvency & Restructuring, Litigation, O'Melveny & Myers LLP, Debtor, Sixth Circuit
    Authors:
    Nancy Mitchell , Hugh E. Hilliard , Matthew Hinker , Joseph A. Spina
    Location:
    USA
    Firm:
    O'Melveny & Myers LLP
    Update: Supreme Court Grants Cert to Resolve Circuit Split Regarding Pre-Bankruptcy Seizure
    2019-12-19

    We recently reported on a decision of the United States Court of Appeals for the Third Circuit in favor of a creditor that seized a debtor’s property pre-petition.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Patterson Belknap Webb & Tyler LLP, Debtor, Title 11 of the US Code, Third Circuit, Seventh Circuit
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP
    Sixth Circuit Holds that Bankruptcy Courts Must Permit FERC Participation in Bankruptcy Proceedings Considering Rejection of FERC-Jurisdictional Contracts
    2019-12-19

    On December 12, 2019, the United States Court of Appeals for the Sixth Circuit (“Sixth Circuit”) issued an opinion affirming in part and reversing in part a bankruptcy court’s assertion of exclusive and unlimited jurisdiction over certain of FirstEnergy Solutions’ (“FES”) power purchase agreements that FERC had previously approved under the Federal Power Act (“FPA”) and that FES sought to reject in bankruptcy.

    Filed under:
    USA, Energy & Natural Resources, Insolvency & Restructuring, Litigation, Troutman Pepper, Debtor, FERC, U.S. Court of Appeals
    Authors:
    Katherine O'Konski , Adrienne L. Thompson
    Location:
    USA
    Firm:
    Troutman Pepper
    Section 363 Does Not Apply to Chapter 11 Plan Sales
    2019-12-13

    In In re Ditech Holding Corp., 2019 WL 4073378 (Bankr. S.D.N.Y. Aug. 28, 2019), the U.S. Bankruptcy Court for the Southern District of New York addressed several objections to confirmation of a chapter 11 plan that proposed to sell home mortgage loans "free and clear" of certain claims and defenses of the homeowner creditors, contrary to a provision of the Bankruptcy Code—section 363(o)—which was enacted in 2005 to prevent free and clear sales of certain claims and defenses relating to consumer credit agreements.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Debtor, Creditors' rights, Title 11 of the US Code
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Continuing Doubt About the Opt-Out: Uncertainty Reigns Over Third-Party Releases
    2019-12-13

    Whether because of, or in spite of, the proliferating case law it is hard to say, but the issues in, underlying and surrounding third-party releases in Chapter 11 plans just continue to arise with incessant regularity, albeit without a marked increase in clarity. We have posted about those issues here six times in little more than two years,[1] and it is fair to assume that this post will not be the last.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Patterson Belknap Webb & Tyler LLP, Debtor
    Authors:
    David W. Dykhouse
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP

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