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    Post-Petition Lenders: Does Your Super-Priority Claim Trump Post Conversion Expenses?
    2016-10-26

    Key points:

    • While DIP Lenders rightfully negotiate for super-priority administrative expenses which trump post conversion chapter 7 administrative expenses, these provisions are not uniformly enforced.

    • DIP Lenders should require the inclusion of specific language providing that section 364(c)(1) super-priority claims have priority over chapter 7 administrative expense claims, including those to be incurred by a chapter 7 trustee above the agreed upon “burial expenses.”  

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Dechert LLP
    Location:
    USA
    Firm:
    Dechert LLP
    Lenders to SPEs: Be Aware, You May Not Have Standing to Appeal a Substantive Consolidation Order
    2016-10-18

    A substantive non-consolidation opinion is a common feature of structured finance transactions in the U.S. Most, if not all, opine as to what a bankruptcy court would do, but express no opinion on the appellate process. We would venture a guess that most opinion recipients assume that if the bankruptcy court gets it wrong, their rights will be vindicated on appeal. The Eighth Circuit opinion in Opportunity Finance1 casts a troubling shadow over that assumption.

    Background

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Securitization & Structured Finance, Dechert LLP, Eighth Circuit
    Location:
    USA
    Firm:
    Dechert LLP
    D&Os - Be Aware of Creditor Exclusion in Your Insurance Coverage
    2016-10-11

    The U.S. Court of Appeals for the Fifth Circuit recently held that a Creditor Exclusion provision in D&O insurance coverage may result in significant limitations on the coverage provided to the D&Os, when the underlying dispute is with a creditor in its capacity as such.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Insurance, Litigation, Dechert LLP, Refinancing, Default (finance)
    Location:
    USA
    Firm:
    Dechert LLP
    Recent Developments in Acquisition Finance
    2016-10-04

    A recent Delaware bankruptcy court decision may potentially place at risk an equity sponsor’s ability to retain proceeds from the sale of a portfolio company whose performance later deteriorates, where the selling sponsor acted in bad faith and the portfolio company was or became insolvent at the time of or on account of the sale.

    Circuit Break? Delaware Bankruptcy Court Rejects Second Circuit Ruling on State Law Fraudulent Transfers

    Filed under:
    USA, Delaware, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Dechert LLP, Second Circuit
    Authors:
    Jeffrey M. Katz , Scott M. Zimmerman , Shane P. Alexander
    Location:
    USA
    Firm:
    Dechert LLP
    Seventh Circuit: Section 546(e) Safe Harbor Does Not Shield From Avoidance Transfers Made Through Financial Institution Conduits
    2016-08-02

    In FTI Consulting, Inc. v. Merit Management Group, LP,1 the Seventh Circuit recently held that transfers are not protected under the safe harbor of section 546(e) of the U.S.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, Dechert LLP, Bankruptcy, Debtor, Safe harbor (law), Seventh Circuit
    Location:
    USA
    Firm:
    Dechert LLP
    General Motors: Protection Granted in Section 363 Sale Orders is Only as Good as the Notice Given
    2016-07-18

    In a recent decision by the U.S. Court of Appeals for the Second Circuit in the General Motors case, the court held certain claimants were not afforded procedural due process with respect to the § 363 sale of General Motor Corporation’s assets in the bankruptcy case. As a result, the assets were not sold free and clear of these claims, and these claimants may now seek recovery against New GM.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Dechert LLP, General Motors, Second Circuit
    Location:
    USA
    Firm:
    Dechert LLP
    Recent Developments in Acquisition Finance
    2016-06-30

    Private equity sponsors should be aware of two recent court decisions. One involves fiduciary duties under state law that may be owing to a limited liability company borrower by its managers, in the context of receivables financing facilities or other asset-based lending transactions involving the use of special-purpose vehicles. The other involves certain implications of governing-law choices under acquisition financing and related agreements.

    Pottawattamie: Maybe Not So Special (Purpose) After All

    Filed under:
    USA, Delaware, Banking, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Dechert LLP, Fiduciary
    Authors:
    Jeffrey M. Katz , Scott M. Zimmerman
    Location:
    USA
    Firm:
    Dechert LLP
    Supreme Court Strikes Down Puerto Rico’s Local Restructuring Law
    2016-06-17

    In a 5-2 decision, the Supreme Court of the United States in Commonwealth of Puerto Rico et al. v. Franklin California Tax-Free Trust et al., 579 U.S. ___ (2016), rejected the Puerto Rico Public Corporation Debt Enforcement and Recovery Act (the “Recovery Act”) as preempted by the Bankruptcy Code on June 13, 2016. The practical implication of the decision is that Puerto Rico is currently without options to restructure its billions of dollars in municipal debt, and the only feasible path forward will most likely have to come from Congress.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Dechert LLP
    Location:
    USA
    Firm:
    Dechert LLP
    Proposed U.S. Federal Reserve Board Rule’s Impact on Buy-Side Remedies in QFCs with Global Systemically Important Banking Organizations and their Affiliates
    2016-06-15

    The Board of Governors of the U.S. Federal Reserve System (Board) recently proposed a rule (Proposed Rule) that will impact parties to any "qualified financial contract" (QFC), as described below, with a global systemically important banking organization (GSIB) or a GSIB affiliate (together, a covered entity). The Proposed Rule will eliminate certain contractual rights with respect to the QFC when:

    the covered entity counterparty is placed in a Federal Deposit Insurance Corporation (FDIC) receivership; or

    Filed under:
    USA, Banking, Insolvency & Restructuring, Dechert LLP, Federal Reserve Board, Bank holding company, Investment company, Federal Deposit Insurance Corporation (USA)
    Location:
    USA
    Firm:
    Dechert LLP
    Litigation Funder Communications Protected by the Attorney-Client Privilege and Work Product Doctrine
    2016-06-08

    Addressing a novel issue in In re: International Oil Trading Company, LLC, 548 B.R. 825 (Bankr. S.D. Fla. 2016), the United States Bankruptcy Court for the Southern District of Florida recently denied in part an involuntary debtor’s motion to compel production of communications between the judgment creditor who had filed the involuntary bankruptcy petition and the petitioner’s litigation funder. The Court found that the attorney-client privilege and work product protection were applicable to certain disclosures made to the litigation funder, a non-lawyer third-party.

    Filed under:
    USA, Florida, Insolvency & Restructuring, Legal Practice, Litigation, Dechert LLP, Bankruptcy, Work-product doctrine, Attorney-client privilege, Discovery, United States bankruptcy court
    Authors:
    Gary J Mennitt , Shmuel Vasser , Anne Gruner
    Location:
    USA
    Firm:
    Dechert LLP

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