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    LBO payments for privately-held company not subject to avoidance
    2009-01-30

    Introduction

    Filed under:
    USA, Delaware, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Public company, Security (finance), Fraud, Interest, Privately held company, Limited partnership, Subsidiary, Title 11 of the US Code, Trustee, United States bankruptcy court, Third Circuit, US District Court for District of Delaware
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Is triangular set-off enforceable under US laws?
    2009-01-29

    Introduction:  

    Filed under:
    USA, Delaware, Derivatives, Energy & Natural Resources, Insolvency & Restructuring, Litigation, Reed Smith LLP, Contractual term, Bankruptcy, Debtor, Swap (finance), Debt, Default (finance), Chevron Corporation, Title 11 of the US Code, United States bankruptcy court, US District Court for District of Delaware
    Location:
    USA
    Firm:
    Reed Smith LLP
    The Chevron opinion: the end of triangular setoff as we know it?
    2009-02-04

    Setoff is a doctrine based as much on practical considerations as on equitable ones.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, White & Case, Bankruptcy, Debtor, Safe harbor (law), Debt, Chevron Corporation, United States bankruptcy court, US District Court for District of Delaware
    Location:
    USA
    Firm:
    White & Case
    Fisk Ventures, LLC v. Segal, et al.
    2009-02-24

    C.A. No. 3017-CC (Del. Ch. February 24, 2009)

    On February 24, 2009, Chancellor Chandler issued a two-page order in Fisk Ventures, LLC v. Segal, et al. addressing several aspects of the Order and Decree of Judicial Dissolution of Genitrix, as to which the parties could not agree upon the form and content of the petitioner’s form of order. One of Chancellor Chandler’s conclusions merits additional attention.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Potter Anderson & Corroon LLP, Limited liability company, Liability (financial accounting), Liquidation, Liquidator (law), Delaware Supreme Court
    Location:
    USA
    Firm:
    Potter Anderson & Corroon LLP
    Duties of directors of distressed corporations under Maryland law
    2009-03-03

    In these uncertain times, boards of directors face many important decisions about a company’s present and future actions, including reduction or suspension of dividends, layoffs, asset sales, unsolicited takeover offers, liquidation and even insolvency proceedings. In making these decisions, directors should remember their overarching responsibility for continuing oversight and informed decision-making.

    Filed under:
    USA, Delaware, Maryland, Company & Commercial, Insolvency & Restructuring, Litigation, Venable LLP, Bankruptcy, Shareholder, Surety, Debtor, Dividends, Board of directors, Debt, Liability (financial accounting), Liquidation, Good faith, Balance sheet, Delaware General Corporation Law, Delaware Court of Chancery, Delaware Supreme Court
    Authors:
    James J. Hanks Jr. , Greg Cross , Christopher W. Pate , Carmen M. Fonda
    Location:
    USA
    Firm:
    Venable LLP
    Delaware bankruptcy court overrules objection of lone dissenting syndicate lender to collateral agent's credit bid
    2009-04-09

    One of the key protections afforded to secured creditors under the Bankruptcy Code is the right of a holder of a secured claim to credit bid the allowed amount of its claim as part of a sale process under section 363 of the Bankruptcy Code. Specifically, section 363(k) of the Bankruptcy Code provides that:

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Credit (finance), Debtor, Collateral (finance), Waiver, Debt, Secured loan, Constitutional amendment, United States bankruptcy court
    Authors:
    Brad B. Erens
    Location:
    USA
    Firm:
    Jones Day
    Delaware Bankruptcy Court decision in SemCrude prohibits triangular setoff in absence of safe harbor
    2009-03-31

    Earlier this year, the United States Bankruptcy Court for the District of Delaware ruled that a nondebtor cannot effect a “triangular” setoff of the amounts owed between it and three affiliated debtors, even if the parties had entered into pre-petition contracts that expressly contemplated multiparty setoff.1 In reaching its decision, the Court relied principally on the plain language of section 553(a) of the United States Bankruptcy Code, which limits setoff to “mutual” obligations — i.e., direct obligations between a single obligor and obligee.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Debtor, Safe harbor (law), Debt, Limited partnership, Precondition, Subsidiary, Chevron Corporation, Title 11 of the US Code, United States bankruptcy court, US District Court for District of Delaware
    Authors:
    Mark C. Ellenberg
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Mitsubishi Power Systems Americas, Inc. v. Babcock & Brown Infrastructure Group US, LLC
    2009-04-27

    C.A. No. 4499-VCL (Del. Ch. Apr. 27, 2009) (Lamb, V.C.) (Letter opinion).

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Potter Anderson & Corroon LLP, Debtor, Injunction, Breach of contract, Limited liability company, Discovery, Preliminary injunction, Debt, Liquidation, Secured loan, Australian Securities Exchange, Court of Chancery
    Location:
    USA
    Firm:
    Potter Anderson & Corroon LLP
    Is triangular set-off enforceable under U.S. laws?
    2009-04-27

    The U.S. Bankruptcy Court for the District of Delaware recently issued a decision addressing triangular set-off provisions, which potentially has very far-reaching implications for the enforceability of contractual set-off rights under U.S. law.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Reed Smith LLP, Bankruptcy, Debtor, Safe harbor (law), Swap (finance), Debt, Common law, Chevron Corporation, US Code, Title 11 of the US Code, Delaware Supreme Court, United States bankruptcy court, US District Court for District of Delaware
    Location:
    USA
    Firm:
    Reed Smith LLP
    Weathering the storm: recent decision affects setoff under netting agreements
    2009-04-23

    Companies that engage in multiple transactions with different entities of related groups often enter into contractual netting agreements that allow the setoff of obligations between entities within the groups. The effectiveness of these agreements has been called into question by a recent decision of a bankruptcy court in Delaware, which refused to allow a party to a contractual netting agreement to offset its obligations to the debtors against obligations of the debtors under the netting agreement.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Haynes and Boone LLP, Contractual term, Debtor, Safe harbor (law), Swap (finance), Debt, Chevron Corporation, Title 11 of the US Code, United States bankruptcy court
    Authors:
    Kenric Kattner , Lenard Parkins , Robin E. Phelan , Sarah Foster , Scott Everett
    Location:
    USA
    Firm:
    Haynes and Boone LLP

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