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    Third Circuit limits secured creditor's right to credit bid: "cram down" plan may be "fair and equitable" despite requiring cash bids
    2010-03-27

    On March 22, 2010, the United States Court of Appeals for the Third Circuit affirmed a lower court decision which held that secured creditors do not have an absolute right to credit bid at an auction of assets conducted in connection with a bankruptcy reorganization plan. The court ruled that secured creditors are only entitled to the "indubitable equivalent" of their claims under a specific subsection of the Bankruptcy Code. The "indubitable equivalent" could be the cash value of the assets upon which the creditor holds liens as determined through an auction process.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Wiley Rein LLP, Bankruptcy, Credit (finance), Debtor, Interest, Secured creditor, Secured loan, US Code, Title 11 of the US Code, United States bankruptcy court, Third Circuit
    Location:
    USA
    Firm:
    Wiley Rein LLP
    Intellectual property in bankruptcy
    2008-06-20

    Intellectual property rights, such as copyrights, trademarks, and patents, are critical to the operation of many businesses. Often the rights to use intellectual property are dependent upon licenses granting a contractual right to the use of the intellectual property. The bankruptcy of an intellectual property licensor can substantially impact the business of the licensee and the continued right to the use of the licensed intellectual property. Similarly, a bankruptcy filing by a licensee may jeopardize important revenue streams, which a licensor of the intellectual property relies upon.

    Filed under:
    USA, Insolvency & Restructuring, Intellectual Property, Wiley Rein LLP, Royalty payment, Bankruptcy, Debtor, Breach of contract, Business judgement rule, United States bankruptcy court
    Location:
    USA
    Firm:
    Wiley Rein LLP
    Grant of nonexclusive trademark license bars chapter 11 franchisee’s assumption of franchise agreement
    2007-05-25

    In a case of apparent first impression, U.S. District Court Judge Alan S. Gold recently held in In re Wellington Vision, Inc., No. 06-80446, __ B.R. ___, 2007 WL 762398 (S.D. Fla. Feb. 20, 2007), that a franchisee in chapter 11 cannot assume (i.e., retain) a franchise agreement that grants a nonexclusive trademark license, leaving the franchisor free to terminate the agreement.

    Filed under:
    USA, Franchising, Insolvency & Restructuring, Intellectual Property, Litigation, Wiley Rein LLP, Bankruptcy, Conflict of laws, Debtor, Marketing, Franchise agreement, Debtor in possession, Lanham Act 1946 (USA), Ninth Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Wiley Rein LLP
    Dynegy examiner's report identifies potential fraudulent transfer and prompts request for Chapter 11 trustee
    2012-03-30

    On March 9, 2012, Susheel Kirpalani, the court-appointed examiner for Dynegy Holdings, LLC (Dynegy), concluded that the debtor's transfer of certain assets to its parent company, Dynegy, Inc., prior to its bankruptcy filing may be recoverable as a fraudulent transfer. Kirpalani further determined that Dynegy's board of directors breached its fiduciary duty in approving the asset transfer. Dynegy, Inc. vigorously disputes the examiner's findings.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Wiley Rein LLP, Debtor, Fraud, Fiduciary, Trustee
    Authors:
    Rebecca L. Saitta
    Location:
    USA
    Firm:
    Wiley Rein LLP
    Protecting manufacturers and distributors in bankruptcy
    2010-03-26

    It is a harrowing scenario for any seller of goods: a trading-partner files for bankruptcy and leaves the seller with thousands, even millions of dollars in unpaid invoices. In many instances, some of these goods were delivered only days before the bankruptcy filing. While a creditor may be able to assert reclamation rights, those rights are often difficult to enforce in bankruptcy and may be subordinate to the interests of an all assets lender.

    Filed under:
    USA, Insolvency & Restructuring, Wiley Rein LLP, Bankruptcy, Debtor, Consumer protection, US Code, Uniform Commercial Code (USA)
    Location:
    USA
    Firm:
    Wiley Rein LLP
    Supreme Court upholds individual states’ rights to tax certain bankruptcy sales
    2008-06-20

    On June 16, 2008, Justice Clarence Thomas delivered the opinion of the court in Florida Department of Revenue v. Piccadilly Cafeterias, Inc. In a 7-2 decision, the Supreme Court reversed the decision of the U.S. Court of Appeals for the Eleventh Circuit and held that § 1146(a) provides an exemption to state stamp taxes only where a sale occurs pursuant to a plan that has been confirmed, and did not properly apply to a case where the plan was confirmed several months after the bankruptcy court approved the sale.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Tax, Wiley Rein LLP, Tax exemption, Bankruptcy, Debtor, Dissenting opinion, Stamp duty, Majority opinion, Title 11 of the US Code, SCOTUS, United States bankruptcy court, Eleventh Circuit
    Location:
    USA
    Firm:
    Wiley Rein LLP
    Insurers have standing to object to Skinner reorganization plan; insurers’ motion to dismiss case denied
    2007-05-25

    The district court in Hartford Accident & Indemnity Company, et al. v. American Capital Equipment, et al., No. 06-0891 (U.S. Dist. Ct. W.D. Pa. May 11, 2007), affirmed that Skinner Engine Company's insurers have standing to move to dismiss Skinner's chapter 11 bankruptcy case and to challenge its bankruptcy plan. However, the court also affirmed the bankruptcy court's denial of the insurers' motion to dismiss the bankruptcy case.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Wiley Rein LLP, Bankruptcy, Debtor, Standing (law), Good faith, Involuntary dismissal, US Constitution, United States bankruptcy court
    Location:
    USA
    Firm:
    Wiley Rein LLP
    Suspected misconduct prompts creditors to seek appointment of bankruptcy examiners
    2012-02-17

    In late 2011, bondholders in the bankruptcy case of power company Dynegy Holdings, LLC (Dynegy) moved for the appointment of a bankruptcy examiner to investigate certain transactions that occurred immediately prior to the filing of Dynegy's bankruptcy petition. The transactions at issue involve the alleged transfer of millions of dollars in assets to Dynegy's parent company (a non-debtor) approximately two months prior to the bankruptcy filing.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Wiley Rein LLP, Bankruptcy, Debtor
    Authors:
    Rebecca L. Saitta
    Location:
    USA
    Firm:
    Wiley Rein LLP
    Bankruptcy Appellate Panel affirms relief from automatic stay for payment of director's defense costs
    2010-02-25

    The Bankruptcy Appellate Panel of the Ninth Circuit has affirmed the bankruptcy court’s grant of a motion by a debtor’s sole director to modify the automatic stay to allow payment of defense costs under the A-side coverage of the debtor’s directors and officers liability insurance policy. In re MILA, Inc., 2010 WL 455328 (B.A.P. 9th Cir. Jan. 29, 2010).

    Filed under:
    USA, Insolvency & Restructuring, Insurance, Litigation, Wiley Rein LLP, Costs in English law, Debtor, Liability insurance, Capital punishment, Ninth Circuit, United States bankruptcy court, Bankruptcy Appellate Panel, Trustee
    Location:
    USA
    Firm:
    Wiley Rein LLP
    Identifying and dealing with a financially troubled franchisee: what franchisors can do to prepare for a franchisee bankruptcy or receivership
    2008-05-09

    In the last issue of Franchise Alert, we discussed how to spot signs of franchisee financial distress at an early stage. Here, we present some steps franchisors can take to deal with financially distressed franchisees.

    Update Files

    Filed under:
    USA, Franchising, Insolvency & Restructuring, Wiley Rein LLP, Bankruptcy, Surety, Debtor, Accounts receivable, Consent, Due diligence, Franchise agreement, Precondition, Default (finance), Title 11 of the US Code
    Location:
    USA
    Firm:
    Wiley Rein LLP

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