Skip to main content
Home
Enter a keyword

Main navigation

Menu
  • US Law
  • Regions
    • Africa
    • Asia Pacific
    • Europe
    • North Africa/Middle East
    • North America
    • South America
  • Headlines
  • Education Resources
    • ABI Committee Articles
    • ABI Journal Articles
    • Covid 19
    • Conferences and Webinars
    • Newsletters
    • Publications
  • Firm Articles
  • About Us
    • ABI International Board Committee
    • ABI International Member Committee Leadership
  • Join ABI

Fifth Circuit Holds Buyer Entitled to Exercise Contractual Economic Leverage Without Impairing Good Faith Purchaser Status
2023-05-18

On April 17, 2023, the Fifth Circuit issued an opinion holding that a senior lender who uses economic leverage and exercises its statutory and contractual rights upon a borrower’s default, including the right to credit bid as part of a bankruptcy sale process—despite adverse impact on a junior lender—remains a “good faith” purchaser entitled to the protections under Section 363(m) of the Bankruptcy Code.

Filed under:
USA, Insolvency & Restructuring, Litigation, Real Estate, Hunton Andrews Kurth LLP, Fifth Circuit
Authors:
Gregory G. Hesse
Location:
USA
Firm:
Hunton Andrews Kurth LLP
View Original Article
A Split Resolved: The Supreme Court Holds Section 363(m) To Be Non-Jurisdictional - and Maybe Casts a Shadow on the Doctrine of Equitable Mootness
2023-04-20

On April 19, 2023, the Supreme Court, in a unanimous opinion written by Justice Ketanji Brown Jackson in MOAC Mall Holdings LLC, ruled Bankruptcy Code section 363(m) to be non-jurisdictional, i.e. just a “mere restriction on the effects of a valid exercise” of judicial power “when a party successfully appeals a covered authorization.” Before MOAC, the Third, Sixth, Seventh, Ninth, Tenth and Eleventh Circuits held section 363(m) to be non-jurisdictional, but the Fifth and Second Circuits had diverged.

Reasoning

Filed under:
USA, Insolvency & Restructuring, Litigation, Reed Smith LLP, Bankruptcy, US Congress, Supreme Court of the United States, Second Circuit, Fifth Circuit, Eleventh Circuit, Third Circuit, Sixth Circuit, Seventh Circuit, Tenth Circuit
Location:
USA
Firm:
Reed Smith LLP
View Original Article
Applying the Barton Doctrine, the Fifth Circuit Deepends Its Schism with the Eleventh
2023-02-28

In a recent per curium opinion, the Fifth Circuit recommitted to its practice of dismissing claims against court-appointed fiduciaries when plaintiffs fail to obtain permission before bringing suit. The court rested its decision on the Barton doctrine, which other courts, including the Eleventh Circuit, have found inapplicable in similar circumstances.

Filed under:
USA, Insolvency & Restructuring, Litigation, Patterson Belknap Webb & Tyler LLP, Supreme Court of the United States, Fifth Circuit
Authors:
Maxwell K. Weiss , Daniel A. Lowenthal
Location:
USA
Firm:
Patterson Belknap Webb & Tyler LLP
View Original Article
Fifth Circuit: Bad Faith Does Not Overcome Deferential Business Judgment Standard Applied to Assumption or Rejection of Contracts in Bankruptcy
2023-01-31

The ability of a bankruptcy trustee or chapter 11 debtor-in-possession ("DIP") to assume, assume and assign, or reject executory contracts and unexpired leases is an important tool designed to promote a "fresh start" for debtors and to maximize the value of the bankruptcy estate for the benefit of all stakeholders. Bankruptcy courts generally apply a deferential "business judgment" standard to the decision of a trustee or DIP to assume or reject an executory contract or an unexpired lease.

Filed under:
USA, Energy & Natural Resources, Insolvency & Restructuring, Litigation, Real Estate, Jones Day, Fifth Circuit
Authors:
Mark A. Cody , Mark G. Douglas
Location:
USA
Firm:
Jones Day
View Original Article
Fifth Circuit Embraces Flexible Approach to Countryman Test of Executoriness in Bankruptcies Involving Multiparty Contracts
2022-12-05

Whether a contract is "executory" such that it can be assumed, rejected, or assigned in bankruptcy is a question infrequently addressed by the circuit courts of appeals. The U.S. Court of Appeals for the Fifth Circuit provided some rare appellate court-level guidance on the question in Matter of Falcon V, L.L.C., 44 F.4th 348 (5th Cir. 2022). The Fifth Circuit affirmed lower-court rulings determining that a surety contract was not executory because the surety had already posted irrevocable surety bonds and did not owe further performance to the debtors.

Filed under:
USA, Company & Commercial, Insolvency & Restructuring, Litigation, Jones Day, NLRB, US Congress, SCOTUS, United States bankruptcy court, Fifth Circuit, Third Circuit
Authors:
Dan B. Prieto , Mark G. Douglas
Location:
USA
Firm:
Jones Day
View Original Article
Fifth Circuit Triples Down: Filed-Rate Natural Gas and Power Contracts Can Be Rejected in Bankruptcy Without FERC Approval
2022-12-05

In Gulfport Energy Corp. v. FERC, 41 F.4th 667 (5th Cir. 2022), the U.S. Court of Appeals for the Fifth Circuit tripled down on its nearly two-decades-long view that filed-rate contracts regulated under the National Gas Act (the "NGA") and the Federal Power Act (the "FPA") can be rejected in bankruptcy without the consent of the Federal Energy Regulatory Commission ("FERC"). Reaffirming its previous rulings in In re Mirant Corp., 378 F.3d 511 (5th Cir. 2004), and In re Ultra Petroleum Corp., 28 F.4th 629 (5th Cir.

Filed under:
USA, Energy & Natural Resources, Insolvency & Restructuring, Litigation, Jones Day, FERC, US Congress, United States bankruptcy court, Fifth Circuit
Authors:
Paul M. Green , Mark G. Douglas
Location:
USA
Firm:
Jones Day
View Original Article
Fifth Circuit Holds Debtor’s Alleged Bad Faith Dealings Do Not Negate Business Judgment Deference on Lease Rejection
2022-11-16

In Matter of J.C. Penney Direct Marketing Services, L.L.C.,1 the United States Fifth Circuit Court of Appeals clarified the extremely deferential standard afforded to a debtor’s “business judgment” decision to reject an unexpired lease under section 365 of the Bankruptcy Code and affirmed the Bankruptcy Court’s ruling allowing rejection of a ground lease notwithstanding allegations of a debtor-sublessor’s bad faith dealings in its negotiations with a sublessee.

Background

Filed under:
USA, Insolvency & Restructuring, Litigation, Real Estate, Leases, United States bankruptcy court, Fifth Circuit
Location:
USA
View Original Article
Fifth Circuit Follows Ninth Circuit, Allows Post-Bankruptcy Contract Rate Interest In Solvent Debtor Case
2022-11-14

“… [B]ecause Congress has not clearly abrogated the solvent-debtor exception,” the U.S. Court of Appeals for the Fifth Circuit held that a reorganized solvent debtor had to “pay what it promised now that it is financially capable.” In re Ultra Petroleum Corp., 2022 WL 8025329, *1, (5th Cir. Oct. 14, 2022) (2-1). Moreover, “given [the debtor’s ] solvency, post-petition interest is to be calculated according to the agreed-upon … contractual default rate …,” not the “much lower Federal Judgment Rate …,” held the court. Id.

Filed under:
USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Liquidated damages, Fifth Circuit
Authors:
Michael L. Cook
Location:
USA
Firm:
Schulte Roth & Zabel LLP
View Original Article
Solvent Debtors: Make-Whole Premiums and Post-Petition Interest
2022-11-04

On October 14, 2022, the U.S. Court of Appeals for the Fifth Circuit affirmed the decision of the U.S. Bankruptcy Court for the Southern District of Texas (Isgur, J.) allowing a claim against a solvent debtor for a make-whole premium and post-default interest totaling approximately $387 million. Ultra Petroleum Corp., et al. v.

Filed under:
USA, Insolvency & Restructuring, Litigation, Reed Smith LLP, United States bankruptcy court, Fifth Circuit, U.S. Court of Appeals
Location:
USA
Firm:
Reed Smith LLP
View Original Article
Fifth Circuit Rules on the "Solvent-Debtor Exception" and Make-Whole Premiums
2022-10-28

In Short

The Situation: Courts have disagreed over whether a make-whole premium triggered by a borrower's bankruptcy filing must be disallowed as unmatured interest. They have also disputed whether the "solvent-debtor exception" requiring the payment of postpetition interest to unimpaired unsecured creditors of a solvent debtor survived the enactment of the Bankruptcy Code. Finally, courts have split on what rate of postpetition interest unimpaired unsecured creditors of a solvent debtor are entitled to receive.

Filed under:
USA, Insolvency & Restructuring, Litigation, Jones Day, US Congress, Fifth Circuit
Authors:
Heather Lennox , James O. Johnston , Joshua M. Mester , Bruce Bennett , C. Lee Wilson , Nicholas C.E. Walter
Location:
USA
Firm:
Jones Day
View Original Article

Pagination

  • Current page 1
  • Page 2
  • Page 3
  • Page 4
  • Page 5
  • Page 6
  • Page 7
  • Page 8
  • Page 9
  • …
  • Next page ››
  • Last page Last »

Footer menu

  • Publications
  • Newsletters
  • ABI International Board Committee

© 2022 Global Insolvency, All Rights Reserved