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    Post-script – recent Enron “settlement payment” decision has first beneficiary
    2011-08-03

    The Bottom Line:

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Bankruptcy, Unsecured debt, Security (finance), Default (finance), Subsidiary, Enron, Second Circuit, United States bankruptcy court, US District Court for the Southern District of New York
    Authors:
    Benjamin C. Wolf
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Reflections on the Metavante decision and the ISDA Master Agreement: the British Virgin Islands perspective
    2009-10-02

    On 15 September 20091 the judge responsible for the Lehman bankruptcy proceedings in the United States held that Metavante Corporation (“Metavante”) could not rely on Section 2(a)(iii) of the ISDA Master Agreement to suspend payments to Lehman Brothers Special Financing, Inc. (“LBSF”). Specifically, Judge Peck held that the safe harbour provisions in the US bankruptcy code protected a non-defaulting party’s contractual rights to liquidate, terminate or accelerate swaps and to net termination values but did not provide a basis to withhold performance under a swap if it did not terminate.

    Filed under:
    British Virgin Islands, Derivatives, Insolvency & Restructuring, Litigation, Harneys, Bankruptcy, Safe harbor (law), Swap (finance), Concession (contract), Liquidation, Default (finance), Liquidator (law), International Swaps and Derivatives Association, Lehman Brothers, Enron
    Authors:
    Colin Riegels
    Location:
    British Virgin Islands
    Firm:
    Harneys
    Surviving a restructuring and key employee retention programs
    2009-05-12

    Retention of key employees is a primary concern of any company that is seeking to survive a restructuring process as a viable operating business. The question is how to ensure that employee retention payments fairly balance the goal of retaining employees who are key to the restructuring against the financial impact on other stakeholders of the implementation of such a program. Beyond that, in the case of a cross-border restructuring, one must be aware of the difference between Canadian and US law on the issue of employee retention.  

    Filed under:
    Canada, USA, Employment & Labor, Insolvency & Restructuring, Norton Rose Fulbright, Bankruptcy, Debtor, Consumer protection, Good faith, Stakeholder (corporate), Corporate social responsibility, Compensation and benefits, Enron
    Authors:
    Evan Cobb
    Location:
    Canada, USA
    Firm:
    Norton Rose Fulbright Canada LLP
    New decision distinguishing excusable neglect in filing proofs of claim after the bar date; denying leave to file late claims
    2010-05-21

    In a recent decision, the United States Bankruptcy Court for the Southern District of New York distinguished excusable neglect in filing a claim before the expiration of a clear bar date. In a written opinion issued on May 20, 2010 in the case of In re Lehman Brothers Holdings, Inc., et. al, Case No. 08-13555 (JMP), Judge Peck denied seven motions for leave to file late claims finding none satisfied the Second Circuit’s strict standard to find excusable neglect.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Lowenstein Sandler LLP, Bankruptcy, Debtor, Federal Reporter, Prejudice, US Department of the Treasury, Lehman Brothers, Enron, Second Circuit, United States bankruptcy court
    Authors:
    Sharon L. Levine , S. Jason Teele
    Location:
    USA
    Firm:
    Lowenstein Sandler LLP
    Trading swap termination claims memorandum
    2010-10-08

    In the wake of the recent financial crisis, the legal system continues to sort out rights and obligations of financial market participants. This is especially true for participants in the over-the-counter derivatives markets.

    The tremendous growth of that largely unregulated market has been accompanied by the development of sophisticated contractual frameworks and specific bankruptcy legislation expressly intended to reduce uncertainty around the amount and type of claims that could ultimately be asserted by market participants following bankruptcy of a derivative counterparty.

    Filed under:
    USA, Derivatives, Insolvency & Restructuring, Richards Kibbe & Orbe LLP, Bankruptcy, Clearing (finance), Unsecured debt, Collateral (finance), Swap (finance), Futures contract, Credit risk, Liability (financial accounting), Default (finance), International Swaps and Derivatives Association, Lehman Brothers, Enron
    Authors:
    Jon Kibbe , Julia Lu
    Location:
    USA
    Firm:
    Richards Kibbe & Orbe LLP
    A skilled examiner can make all the difference
    2010-11-29

    The U.S. Bankruptcy Code provides for the appointment of a bankruptcy examiner to investigate the debtor with respect to allegations of fraud, dishonesty, incompetence, misconduct or mismanagement. The right examiner, with a clearly defined mission, will have a major influence on the bankruptcy process. The difference between a successful financial restructuring or liquidation-resulting in substantial recoveries for the key constituencies-and a time-consuming (and asset-consuming) meltdown, can depend on the approach of the examiner and the examiner's support team.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, White Collar Crime, Wiley Rein LLP, Bankruptcy, Debtor, Unsecured debt, Fraud, Debt, Liquidation, Leveraged buyout, US Department of Justice, Lehman Brothers, Enron, Trustee, Delaware Supreme Court, United States bankruptcy court, US District Court for District of Delaware, US District Court for the Southern District of New York
    Authors:
    H. Jason Gold , Rebecca L. Saitta
    Location:
    USA
    Firm:
    Wiley Rein LLP
    The effective bankruptcy examiner
    2010-12-10

    Pursuant to § 1104 of the United States Bankruptcy Code, the court may appoint a bankruptcy examiner to investigate the debtor with respect to allegations of fraud, dishonesty, incompetence, misconduct or mismanagement. A qualified examiner, with a clearly defined mission, can drastically affect the outcome of the bankruptcy case and directly impact the return to creditors. The difference between a successful financial restructure or liquidation and an investigation yielding little value to the creditors often depends on the approach taken by the examiner and his professionals.

    Filed under:
    USA, Insolvency & Restructuring, Wiley Rein LLP, Conflict of interest, Bankruptcy, Debtor, Unsecured debt, Fraud, Debt, Liquidation, Lehman Brothers cases, The National Law Journal, Lehman Brothers, Enron, Trustee, United States bankruptcy court
    Location:
    USA
    Firm:
    Wiley Rein LLP
    Know which corporate entity is your customer
    2011-04-28

    An ongoing development in bankruptcy practice makes it important for credit managers to determine exactly which entity in a corporate group is actually the customer purchasing and paying for goods or services.

    Filed under:
    USA, Insolvency & Restructuring, White Collar Crime, Calfee Halter & Griswold LLP, Bankruptcy, Fraud, Debt, Liquidation, Enron
    Authors:
    James M. Lawniczak , Thomas A. Cicarella , Jean R. Robertson , Gus Kallergis
    Location:
    USA
    Firm:
    Calfee Halter & Griswold LLP
    A 'settlement payment' is a settlement payment, don't settle for less!
    2011-06-30

    Enron seems like ancient history but the Second Circuit has just issued an important decision in an Enron appeal confirming that the redemption of commercial paper made through DTC is entitled to the Bankruptcy Code § 546(e) exemption for “settlement payments” and, therefore, exempt from attack as preferential transfers. The Second Circuit held that this is so even though the Enron redemption payments were made prior to stated maturity, becoming the first Circuit Court of Appeal to address this issue. Enron Creditors Recovery Corp. v. Alfa, S.A.B. de C.V.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Bracewell LLP, Bankruptcy, Security (finance), Fraud, Safe harbor (law), Market liquidity, Federal Reporter, Debt, Maturity (finance), Preferred stock, Beneficial interest, Commercial paper, Enron, Investment Company Act 1940 (USA), Second Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Bracewell LLP
    Second Circuit holds Bankruptcy Code safe harbor insulates sellers of Enron commercial paper from preference and fraudulent transfer liability
    2011-06-29

    The U.S. Court of Appeals, in a 2-1 decision on June 28, 2011, held that Bankruptcy Code § 546(e), which exempts a “Settlement Payment” from a bankruptcy trustee’s avoiding powers, insulated two sellers of Enron Corporation’s commercial paper from suit despite Enron’s early pre- bankruptcy redemption. Enron Creditors Recovery Corp. v. Alfa, S.A.B. de C.V., ___F.3d ___, 2011 WL 2536101 (2d Cir. June 28, 2011) (2-1).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Bankruptcy, Clearing (finance), Unsecured debt, Security (finance), Safe harbor (law), Debt, Maturity (finance), Commercial paper, ING Group, Enron, Title 11 of the US Code, Second Circuit, United States bankruptcy court
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP

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