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    Ownership Dispute Regarding Foreign Debtor's U.S. Assets Must Be Resolved Before a U.S. Bankruptcy Court Can Approve Sale Under Section 363 in Chapter 15 Case
    2024-09-20

    As the enactment of chapter 15 of the Bankruptcy Code approaches its 20-year anniversary, U.S. bankruptcy courts are still grappling with some unresolved issues concerning how its provisions should be applied to best harmonize cross-border bankruptcy cases. One of those issues was the subject of a bench ruling handed down by the U.S. Bankruptcy Court for the District of Delaware.

    Filed under:
    Global, USA, Delaware, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Debtor
    Authors:
    Corinne Ball , Dan T. Moss , Randi C. Lesnick
    Location:
    Global, USA
    Firm:
    Jones Day
    Delaware Bankruptcy Court Grants Derivative Standing to Creditors’ Committee to Sue Members and Officers of Delaware LLC
    2024-03-28

    In early February, a Delaware bankruptcy judge set new precedent by granting a creditors’ committee derivative standing to pursue breach of fiduciary duty claims against a Delaware LLC’s members and officers. At least three prior Delaware Bankruptcy Court decisions had held that creditors were barred from pursuing such derivative claims by operation of Delaware state law, specifically under the Delaware Limited Liability Company Act (the “DLLCA”).

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Mintz, Delaware Supreme Court
    Authors:
    Jacklyn M. Branby
    Location:
    USA
    Firm:
    Mintz
    Delaware Bankruptcy Court Grants Creditors' Committee of Debtor LLC Derivative Standing
    2024-04-10

    Highlights

    Filed under:
    USA, Delaware, Derivatives, Insolvency & Restructuring, Litigation, Holland & Knight LLP, Delaware Court of Chancery, Delaware Supreme Court
    Authors:
    Heather Cantu Montoya , Lisa Kim , Barbra R. Parlin
    Location:
    USA
    Firm:
    Holland & Knight LLP
    Mallinckrodt Trust Asserts Novel Argument in Response to Safe Harbor Defense (US)
    2024-02-26

    A common defense to a fraudulent transfer claim in bankruptcy concerning a securities transaction is the “safe harbor” defense under section 546(e) of the Bankruptcy Code. In a unique twist, a post-confirmation trust in Delaware recently argued that the safe harbor defense should not be available if the underlying transaction was illegal under the law where the debtor/transferor was incorporated.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, White Collar Crime, Squire Patton Boggs
    Authors:
    Kyle F. Arendsen
    Location:
    USA
    Firm:
    Squire Patton Boggs
    Delaware Bankruptcy Court Imputes Officer's Fraudulent Intent to Corporation in Avoidance Litigation
    2024-01-31

    A powerful tool afforded to a bankruptcy trustee or a chapter 11 debtor-in-possession ("DIP") is the power to recover pre-bankruptcy transfers that are avoidable under federal bankruptcy law (or sometimes state law) because they were either made with the intent to defraud creditors or are constructively fraudulent because the debtor-transferor received less than reasonably equivalent value in exchange and was insolvent at the time, or was rendered insolvent as a consequence of the transfer.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, White Collar Crime, Jones Day, Internal Revenue Service (USA), Internal Revenue Code (USA)
    Authors:
    S. Chrstopher Cundra IV (Chris)
    Location:
    USA
    Firm:
    Jones Day
    Delaware Court of Chancery Clarifies Fiduciary Limitations on Controlling Stockholder’s Exercise of Voting Power
    2024-01-25

    In a landmark decision,[1] the Delaware Court of Chancery addressed, for the first time, the precise duties that a controlling stockholder owes, and the standard of review that will apply, when a controlling stockholder takes actions to block a board of directors’ desired course of action — such as by removing directors or enacting a bylaw requiring a unanimous vote for board action

    Filed under:
    USA, Delaware, Company & Commercial, Insolvency & Restructuring, Litigation, Troutman Pepper, Private equity, Delaware Court of Chancery
    Authors:
    Christopher Chuff , Taylor B. Bartholomew , Matthew M. Greenberg , Joanna J. Cline , Tyler Wilson
    Location:
    USA
    Firm:
    Troutman Pepper
    Private Credit Restructuring Trends: New Delaware Law Aids Secured Creditors in Getting Deals Done Out of Court
    2023-12-20

    In our prior alert over the summer, we highlighted the Delaware Supreme Court’s decision in Stream TV Networks, Inc. v. SeeCubic, Inc., 279 A.3d 323, 329 (Del.

    Filed under:
    USA, Delaware, Company & Commercial, Insolvency & Restructuring, Litigation, Proskauer Rose LLP, Uniform Commercial Code (USA), Delaware Supreme Court
    Authors:
    David M. Hillman , Vincent Indelicato , Charles A. Dale , Steven M Peck , Steven O. Weise , Maximilian A. Greenberg
    Location:
    USA
    Firm:
    Proskauer Rose LLP
    (US) Delaware Bankruptcy Court Strikes Down Global Rockport Settlement
    2023-11-30

    A consensual resolution among all stakeholders is an important goal of any bankruptcy proceeding. But how can parties reach a consensual deal if financing is drying up quickly and the prospect of confirming a plan is grim? That was the issue facing the Rockport debtors (the “Debtors”) in their Delaware bankruptcy cases styled In re The RP Co. Liquidating, LLC. In this case, the Debtors filed a motion asking the bankruptcy court to approve a global settlement (the “Settlement”) with all parties-in-interest—except the Office of the United States Trustee (the “U.S. Trustee”).

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Squire Patton Boggs
    Authors:
    Kyle F. Arendsen
    Location:
    USA
    Firm:
    Squire Patton Boggs
    Ability of Creditors' Committees to Prosecute Estate Claims Given a Boost in Delaware Bankruptcy Courts
    2024-05-30

    The practice of conferring "derivative standing" on official creditors' committees or individual creditors to assert claims on behalf of a bankruptcy estate in cases where the debtor or a bankruptcy trustee is unwilling or unable to do so is well-established. However, until recently, Delaware bankruptcy courts have uniformly limited the practice in cases where applicable non-bankruptcy law provides that creditors do not have standing to bring claims on behalf of certain entities.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Delaware Court of Chancery
    Authors:
    T. Daniel Reynolds (Dan)
    Location:
    USA
    Firm:
    Jones Day
    Delaware Bankruptcy Court: "Center of Main Interests" for Purposes of Chapter 15 Recognition Must Be Determined on Debtor-by-Debtor Rather than Enterprise Group Basis
    2024-05-30

    Determining a foreign debtor's "center of main interests" ("COMI") for purposes of recognizing a foreign bankruptcy proceeding in the United States under chapter 15 of the Bankruptcy Code can be problematic in cases involving multiple debtors that are members of an enterprise group doing business in several different countries. The U.S.

    Filed under:
    Global, USA, Delaware, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Employee Retirement Income Security Act 1974 (USA)
    Authors:
    Corinne Ball , David S. Torborg , Dan T. Moss
    Location:
    Global, USA
    Firm:
    Jones Day

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