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    Fifth Circuit Withdraws Controversial Ruling, but Key Holding Remains
    2019-12-05

    Ultra Petroleum entered bankruptcy in significant financial distress, but then – thanks to a spike in oil prices – the debtor’s fortunes changed almost literally overnight.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Patterson Belknap Webb & Tyler LLP, Title 11 of the US Code, Fifth Circuit
    Authors:
    Brian P. Guiney
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP
    Close Enough: Fifth Circuit Holds That Section 510(B) of the Bankruptcy Code Requires Subordination of Payments That “Look a Lot like” Dividends
    2019-10-10

    In 1930, Clarence Bennett’s wealthy uncle died. He left behind shares in Berry Holding Company ("BHC") that were subdivided into three groups. Bennett was the beneficiary of dividends paid out of one of these groups and, for many years, received his share of dividends from BHC. In 1986, BHC became Berry Petroleum Company ("BPC"), a publicly traded company, and Bennett’s interest changed.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Patterson Belknap Webb & Tyler LLP, Debtor, Title 11 of the US Code, Fifth Circuit
    Authors:
    Brian P. Guiney
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP
    Fifth Circuit Considers Nonconsensual Third-Party Releases Outside of Bankruptcy
    2019-07-18

    We’ve focused a lot on third-party releases lately, as bankruptcy courts across the country continue to evaluate whether and under what circumstances they are permissible. But, as a recent opinion of the United States Court of Appeals for the Fifth Circuit demonstrates, bankruptcy courts are not the only courts grappling with this issue.[1]

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Patterson Belknap Webb & Tyler LLP, Title 11 of the US Code, Fifth Circuit
    Authors:
    Brian P. Guiney
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP
    Another Ruling on Public Auctions Versus Private Sales Under Section 363
    2019-05-03

    Two weeks ago, we discussed asset sales under Bankruptcy Code section 363. As that post noted, section 363 requires court approval for asset sales outside the ordinary course of business, with courts ensuring that sales reflect a reasonable business judgment and have an articulated business justification. Debtors may choose to sell assets via a public auction or through a private sale.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Patterson Belknap Webb & Tyler LLP, Fifth Circuit
    Authors:
    Jonah Wacholder , Daniel A. Lowenthal
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP
    Fifth Circuit Rejects “Futility” Defense in a State-Law Fraudulent Transfer Action
    2019-01-18

    Fraudulent transfer law allows creditors and bankruptcy trustees, under certain circumstances, to sue transferees to recover funds received where a debtor’s transfers to the transferees actually or constructively defrauded its creditors. Under both the Uniform Fraudulent Transfer Act adopted by most states and the fraudulent transfer action created by federal bankruptcy law, a transferee of an alleged fraudulent transfer may assert a defense from such liability by establishing that it received the transfer in good faith and for reasonably equivalent value. See 11 U.S.C.

    Filed under:
    USA, Texas, Banking, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Patterson Belknap Webb & Tyler LLP, Good faith, Fifth Circuit
    Authors:
    Jonah Wacholder , Daniel A. Lowenthal
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP
    Another Gotcha for the Calendar: Section 365(d)(1)
    2018-11-19

    Although it may be difficult to define precisely what an “executory contract” is (with the Bankruptcy Code providing no definition), I think most bankruptcy lawyers feel how the late Supreme Court Justice Potter Stewart famously felt about obscenity--we know one when we see it. Determining that a patent license was executory in the first place was an issue in the Fifth Circuit’s recent decision in RPD Holdings, L.L.C. v.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Patents, Patterson Belknap Webb & Tyler LLP, Bankruptcy, Debtor, Debtor in possession, SCOTUS, Fifth Circuit, Trustee
    Authors:
    David W. Dykhouse
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP
    Bankruptcy Remoteness Going to a Court of Appeals--Fifth Circuit Issues Speedy, Focused Affirmance of the Dismissal of the Petition
    2018-05-23

    Our February 22 post (with updates on March 19, April 17 and

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Patterson Belknap Webb & Tyler LLP, Fifth Circuit
    Authors:
    David W. Dykhouse
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP
    Reversing the District Court, the First Circuit Says PROMESA Provides for an “Unconditional Right to Intervene,” Deepening Circuit Split on Applicability of 11 U.S.C. § 1109(b) in Adversary Proceedings
    2017-09-26

    Last week, in Assured Guaranty Corp. v. Fin. Oversight and Mgmt. Bd. for Puerto Rico, No. 17-1831, 2017 U.S. App. LEXIS 18387 (1st Cir., Sept. 22, 2017), the U.S. Court of Appeals for the First Circuit issued a noteworthy decision in the Puerto Rico quasi-bankruptcy proceedings. Overturning the district court’s ruling, the Court of Appeals held that the Puerto Rico Oversight, Management, and Economic Stability Act (“PROMESA”), 48 U.S.C.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Patterson Belknap Webb & Tyler LLP, Fifth Circuit, First Circuit
    Authors:
    J. Taylor Kirklin , Daniel A. Lowenthal
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP
    Fifth Circuit: recharacterization, it’s not just for insiders anymore
    2011-08-17

    The Bottom Line:

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Royalty payment, Bankruptcy, Conflict of laws, Debtor, Interest, Debt, Legal burden of proof, Maturity (finance), United States bankruptcy court, Fifth Circuit, Fourth Circuit
    Authors:
    Matthew Ziegler
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Post-confirmation litigation – the devil is in the disclosure statement
    2011-08-03

    The Bottom Line:

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Shareholder, Debtor, Dividends, Interest, Federal Reporter, Limited liability company, Discovery, Standing (law), Liquidation, Common law, United States bankruptcy court, Fifth Circuit
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP

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