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    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
    Enforceability of Subordination Provisions in Synthetic CDOs - Lehman Revisited
    2016-08-16

    On June 28, 2016, Judge Chapman of the U.S. Bankruptcy Court for the Southern District of New York ruled in Lehman Brothers Special Financing Inc. v. Bank of America National Association, et al.(Adv. Proc. No. 10-03547 (Bankr. S.D.N.Y.

    Filed under:
    USA, Derivatives, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Bankruptcy, Surety, Collateral (finance), Swap (finance), Liquidation, Default (finance), Collateralized debt obligation, Bank of America, International Swaps and Derivatives Association, Lehman Brothers, Title 11 of the US Code, United States bankruptcy court, US District Court for the Southern District of New York
    Authors:
    Fabien Carruzzo , Philip Powers
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Post-Petition Interest in a Solvent Case: What Interest Rate Controls?
    2016-08-18

    In today's low interest rate environment, the difference between a contractual interest rate and the federal judgment rate can be quite significant. It is not surprising, therefore, that this issue has become hotly litigated in cases involving solvent Chapter 11 debtors. Recently, the U.S. District Court for the Northern District of Illinois, in Colfin Bulls Funding A v. Paloian (In re Dvorkin Holdings), 547 B.R. 880 (N.D. Ill.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Duane Morris LLP, Bankruptcy, Debtor, Unsecured debt, Interest, Discovery, Default (finance), US Congress, The Legal Intelligencer, United States bankruptcy court, US District Court for Northern District of Illinois
    Authors:
    Rudolph J. Di Massa, Jr. , Lawrence J. Kotler , Catherine B. Heitzenrater
    Location:
    USA
    Firm:
    Duane Morris LLP
    Can You Be Sued for Filing a Claim in a Bankruptcy Case?
    2016-08-08

    Upon receiving notice of a debtor’s bankruptcy case, the prudent debt collector typically files a proof of claim, in the hope of receiving some distribution from the debtor’s bankruptcy estate. Absent a fraudulent claim by the debt collector, the Bankruptcy Code specifically provides for the filing of claims against the debtor’s estate. So how could a debt collector be sued for doing what the Code allows? It could happen if debts a collector actually holds are barred from enforcement under a state statute of limitations.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Lewis Rice LLC, Bankruptcy, Costs in English law, Debtor, Fraud, Fiduciary, Statute of limitations, Federal Reporter, Debt, Misrepresentation, Collection agency, Default (finance), Fair Debt Collection Practices Act 1977 (USA), Trustee, Eighth Circuit, Eleventh Circuit
    Authors:
    John J. Hall , Larry E. Parres
    Location:
    USA
    Firm:
    Lewis Rice LLC
    Supreme Court to Resolve Circuit Split Over Structured Dismissals
    2016-07-26

    The Supreme Court again will be addressing the powers of bankruptcy courts. At the end of the term, the Court granted certiorari in Czyzewski v. Jevic Holding Corp. to decide whether a bankruptcy court may authorize the distribution of settlement proceeds in a way that violates the statutory priority scheme in the Bankruptcy Code. No. 15-649, 2016 WL 3496769 (S. Ct. June 28, 2016). The Supreme Court is expected to address this fundamental bankruptcy issue sometime early next year.

    Background

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Orrick, Herrington & Sutcliffe LLP, Bankruptcy, Debtor, Unsecured debt, Debt, Refinancing, Leveraged buyout, Default (finance), Sun Capital Partners, Supreme Court of the United States, Second Circuit, United States bankruptcy court, Fifth Circuit
    Authors:
    Douglas S. Mintz , Robert Loeb , Monica Perrigino
    Location:
    USA
    Firm:
    Orrick, Herrington & Sutcliffe LLP
    New York Bankruptcy Court Dismisses Lehman Bros. Special Financing Inc.'s Lawsuit to Recover Over $1 Billion of Swap Agreement Distributions
    2016-07-11

    In a highly anticipated decision, the Bankruptcy Court for the Southern District of New York (the "Court") on June 28, 2016, dismissed Counts I through XIX of Lehman Brothers Special Financing Inc.'s ("LBSF") fourth amended complaint (the "Complaint") in Lehman Bros. Special Fin. Inc. v. Bank of America, N.A., et al.1 In doing so, the Court removed the majority of the approximately 250 noteholder, issuer and indenture trustee defendants from the LBSF lawsuit to recover over $1 billion distributed in connection with 44 swap transactions.

    Filed under:
    USA, Derivatives, Insolvency & Restructuring, Litigation, Hunton Andrews Kurth LLP, Bankruptcy, Condition precedent, Safe harbor (law), Swap (finance), Liquidation, Default (finance), Collateralized debt obligation, Bank of America, Lehman Brothers, US Code, Title 11 of the US Code, United States bankruptcy court, US District Court for the Southern District of New York
    Location:
    USA
    Firm:
    Hunton Andrews Kurth LLP
    Bankruptcy Courts Closing In - Will An Agreement Requiring Unanimous Consent To File For Bankruptcy Be Effective?
    2016-07-07

    We’ve all seen it. The business opportunity looks enticing but is laced with risk about a potential bankruptcy filing down the road. As bankruptcy lawyers we are often asked how deals can be structured to prevent a potential bankruptcy filing.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Bryan Cave Leighton Paisner (Bryan Cave), Bankruptcy, Legal personality, Debtor, Waiver, Fiduciary, Copyright infringement, Limited liability company, Consent, Limited partnership, Default (finance), United States bankruptcy court, US District Court for District of Delaware, US District Court for Northern District of Illinois
    Authors:
    Natalie Daghbandan
    Location:
    USA
    Firm:
    Bryan Cave Leighton Paisner (Bryan Cave)
    Lehman Brothers Court Holds Swap Safe Harbor Protects ‘Flip’ Transactions
    2016-07-08

    The bankruptcy court overseeing the Lehman Brothers chapter 11 cases rejected efforts by Lehman Brothers Special Financing Inc. (LBSF) to recover roughly $1 billion in payments made to numerous noteholder defendants from the liquidation of collateral originally pledged to secure both obligations under notes issued by special purpose entities and credit default swap (CDS) obligations to LBSF, holding that the termination of the swap and liquidation and distribution of the collateral were protected by the Bankruptcy Code’s safe harbor.

    Filed under:
    USA, Capital Markets, Derivatives, Insolvency & Restructuring, Litigation, Katten Muchin Rosenman LLP, Bankruptcy, Collateral (finance), Safe harbor (law), Swap (finance), Liquidation, Default (finance), Credit default swap, Bank of America, Lehman Brothers, Title 11 of the US Code, United States bankruptcy court, US District Court for the Southern District of New York
    Location:
    USA
    Firm:
    Katten Muchin Rosenman LLP
    Lender’s Derivative Breach of Fiduciary Duty Claim Not Time-Barred Because of Its Knowledge
    2016-07-08

    A lender’s (“Lender”) derivative breach of fiduciary duty claims on behalf of Chapter 7 guarantor-Debtors cannot be time-barred because of Lender’s knowledge of the “[d]efendants’ conduct,” held the U.S. District Court for the District of Delaware on June 22, 2016. In re AMC Investors, LLC, 2016 U.S. Dist. LEXIS 80861, *16 (Del. June 22, 2016).

    Filed under:
    USA, Delaware, Banking, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Credit (finance), Surety, Breach of contract, Fiduciary, Default (finance), United States bankruptcy court
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Flip-clauses reconsidered: Lehman Court departs from previous safe harbor rulings
    2016-06-30

    Court holds that distributions made pursuant to priority payment provisions contained in CDO transactions are protected by Section 560 of the Bankruptcy Code

    Filed under:
    USA, New York, Derivatives, Insolvency & Restructuring, Litigation, Freshfields Bruckhaus Deringer, Bankruptcy, Debtor, Collateral (finance), Security (finance), Safe harbor (law), Class action, Swap (finance), Liquidation, Default (finance), Collateralized debt obligation, Lehman Brothers cases, Bank of America, Lehman Brothers, United States bankruptcy court
    Authors:
    Brian D. Rance , Timothy Harkness , Linda H. Martin , Abbey Walsh
    Location:
    USA
    Firm:
    Freshfields Bruckhaus Deringer

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