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    Your customer’s plan of reorganization may release your third-party guarantor
    2008-11-24

    As the Seventh Circuit has recently made clear in Airadigm Communications, Inc. v. FCC, bankruptcy courts have the discretion under Bankruptcy Code §524 to approve a release contained in a Plan of Reorganization of a party which did not seek bankruptcy protection. Such a non-debtor release is more likely to be approved by the bankruptcy court where the creditors do not object to the confirmation of the Plan or vote to approve the Plan.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Masuda Funai Eifert & Mitchell Ltd, Bankruptcy, Surety, Debtor, Debt, Foreclosure, Federal Communications Commission (USA), Title 11 of the US Code, United States bankruptcy court, Seventh Circuit
    Location:
    USA
    Firm:
    Masuda Funai Eifert & Mitchell Ltd
    Statements made on record by principal of debtors not enforceable by lenders
    2008-12-31

    In In re River Center Holdings, LLC,1 the United States Bankruptcy Court for the Southern District of New York refused to permit lenders to enforce an oral commitment of the debtors’ principal to fund certain litigation. In River Center, the debtors’ principal had stated at a hearing that he would fund a condemnation action relating to property that served as collateral for the lenders’ financing.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Collateral (finance), Limited liability company, Eminent domain, Title 11 of the US Code, United States bankruptcy court
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Delaware Bankruptcy Court refuses to grant administrative claim status to employee WARN Act claims
    2008-12-31

    In Henderson v. Powermate Holding Corp. (In re Powermate Holding Corp.)1, the United States Bankruptcy Court for the District of Delaware became the second bankruptcy court to address the status of WARN Act claims after the 2005 amendments to section 503 of the Bankruptcy Code.

    Filed under:
    USA, Delaware, Employment & Labor, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Wage, Bankruptcy, Employee Retirement Income Security Act 1974 (USA), Debtor, US Code, Title 11 of the US Code, Worker Adjustment and Retraining Notification Act 1988 (USA), United States bankruptcy court, US District Court for District of Delaware
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Section 304 injunction channels creditor’s guaranty claim to foreign proceeding for adjudication under foreign law, notwithstanding New York choice of law provision
    2008-12-31

    In ABN Amro Bank N.V. v. Parmalat Finanziara S.p.A. (In re Parmalat Finanziara S.p.A.),1 the United States District Court for the Southern District of New York affirmed the Bankruptcy Court’s entry of an injunction pursuant to former section 304 of the Bankruptcy Code (the precursor to current chapter 15, applicable in crossborder insolvency proceedings), which prevented the beneficiary of a guaranty governed by New York law from asserting its guaranty claim against Italian debtor (and guarantor) Parmalat S.p.A. (“Parmalat”) in the United States.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Injunction, Preliminary injunction, Legal burden of proof, Choice of law, Title 11 of the US Code, United States bankruptcy court
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Recent significant commercial bankruptcies
    2008-12-23

    AUTOMOTIVE

    EZ Lube LLC, Express Lube Inc. filed for Chapter 11 protection in Delaware.  

    Key Plastics files prepackaged Chapter 11 petition; secured $20M in DIP financing.  

    Precision Parts International filed Chapter 11 petition; commences winding down operations.  

    BROADCASTING

    Equity Media Holdings, Corp. filed for Chapter 11; secured lender seeks conversion to Chapter 7  

    ENERGY  

    Filed under:
    USA, Insolvency & Restructuring, Masuda Funai Eifert & Mitchell Ltd, Bankruptcy, Debtor, Unsecured debt, Limited liability company, Option (finance), Secured loan, United States bankruptcy court
    Location:
    USA
    Firm:
    Masuda Funai Eifert & Mitchell Ltd
    Seventh Circuit upholds narrow application of equitable subordination doctrine
    2009-01-15

    A recent decision of the Court of Appeals for the Seventh Circuit appears to have further raised the hurdle to equitably subordinate claims. Continuing what appears to be a move toward a narrower interpretation of equitable subordination, the Seventh Circuit held that misconduct alone does not provide sufficient justification to equitably subordinate a claim; injury to the interests of other creditors is required as well.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White & Case, Punitive damages, Bankruptcy, Shareholder, Debtor, Unsecured debt, Mortgage loan, Foreclosure, Title 11 of the US Code, United States bankruptcy court, Fifth Circuit, Seventh Circuit
    Location:
    USA
    Firm:
    White & Case
    Second Circuit clarifies meaning and application of retention provision under Bankruptcy Code
    2009-01-14

    On January 6, 2009, the United States Court of Appeals for the Second Circuit rendered a decision in the case of Riker, Danzig, Scherer, Hyland & Perretti v. Official Comm. of Unsecured Creditors (In re: Smart World Tech., LLC) that clarifies the implications of a bankruptcy court's "pre-approval" of the terms of a professional's retention by the bankruptcy estate under Sections 327 and 328 of the Bankruptcy Code.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Contractual term, Bankruptcy, Debtor, ISP, Liquidation, Contingent fee, Second Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Squire Patton Boggs
    Bankruptcy Court: parties may not contract around mutuality requirement to circumvent prohibition against triangular setoffs
    2009-01-14

    The decision in In re SemCrude, L.P., et al. prohibiting parties from contracting around Bankruptcy Code section 553’s mutuality requirement may disrupt customary business practices, including those widely used in the energy, natural gas and crude oil markets, because it rules that contracting for cross affiliate netting does not “create” the mutuality required for setoff.

    Filed under:
    USA, Delaware, Energy & Natural Resources, Insolvency & Restructuring, Litigation, McDermott Will & Emery, Contractual term, Bankruptcy, Debtor, Natural gas, Debt, Chevron Corporation, United States bankruptcy court, US District Court for District of Delaware
    Location:
    USA
    Firm:
    McDermott Will & Emery
    Second Circuit affirms dismissal of insureds' constructive trust counterclaim over reinsurance bankruptcy settlement proceeds
    2009-01-13

    The “Ades” and “Berg” groups of investors (the “Ades Berg Group”), were parties who joined in the bankruptcy proceedings of the Bennett Funding Group, Inc. and related companies (the “Bennett Group”), based on claims that, among other things, the Bennett Group had defrauded them in an investment scheme. The Bennett Group was insured under a reinsurance contract issued by Sphere Drake Insurance PLC (“Sphere Drake”). A settlement was reached in the course of the bankruptcy proceedings between some groups of investors and Sphere Drake.

    Filed under:
    USA, Insolvency & Restructuring, Insurance, Litigation, Jorden Burt LLP, Bankruptcy, Debtor, Fraud, Reinsurance, Prejudice, Constructive trust, Trustee, Supreme Court of the United States, Second Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Jorden Burt LLP
    United States Bankruptcy Court for the Southern District of New York issues highly anticipated opinion discussing a debtor’s liability for post-petition rent during the first month of a bankruptcy case
    2009-01-12

    On December 18, 2008, in connection with the bankruptcy of the Steve & Barry’s retail chain, the United States Bankruptcy Court for the Southern District of New York held that under Section 365(d)(3) of the U.S. Bankruptcy Code (the “Code”), landlords are entitled to pro-rata postpetition rental payments for the monthly “stub” period following the filing of the debtor-tenant’s bankruptcy petition provided that the debtor-tenant continues to enjoy the right to use and occupy the leased property.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Real Estate, Lowenstein Sandler LLP, Bankruptcy, Debtor, Unsecured debt, Landlord, Leasehold estate, Pro rata, US Congress, Title 11 of the US Code, United States bankruptcy court, US District Court for the Southern District of New York
    Location:
    USA
    Firm:
    Lowenstein Sandler LLP

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