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    Fifth Circuit Holds That Make-Whole Amount Constitutes Unmatured Interest
    2022-10-25

    The thing that strikes you the most about Paul, Weiss is the depth of the practice. They just have a large number of senior partners, all of whom are of an outstanding quality.

    - Chambers USA, Band 1 for Bankruptcy/Restructuring (Nationwide and NYC) and "Bankruptcy Law Firm of the Year" in 2019

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Fifth Circuit
    Authors:
    Jacob A Adlerstein , Paul M. Basta , Brian Bolin , Robert Britton , Kelley A. Cornish , Alice Belisle Eaton , Brian S. Hermann , Christopher Hopkins , Kyle J. Kimpler , Alan W Kornberg
    Location:
    USA
    Firm:
    Paul, Weiss, Rifkind, Wharton & Garrison LLP
    Solvent-debtor exception carries the day in Fifth Circuit ultra petroleum ruling on make-wholes and post-petition interest
    2022-10-19

    On October 14, 2022, the Fifth Circuit issued its decision in Ultra Petroleum, granting favorable outcomes to “unimpaired” creditors that challenged the company’s plan of reorganization and argued for payment (i) of a ~$200 million make-whole and (ii) post-petition interest at the contractual rate, not the Federal Judgment Rate. At issue on appeal was the Chapter 11 plan proposed by the “massively solvent” debtors—Ultra Petroleum Corp. (HoldCo) and its affiliates, including subsidiary Ultra Resources, Inc.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, A&O Shearman, Bankruptcy, US Congress, Ninth Circuit, United States bankruptcy court, Fifth Circuit
    Authors:
    Joel Moss , Amber Bennett
    Location:
    USA
    Firm:
    A&O Shearman
    Fifth Circuit, Like Ninth Circuit, Allows Post-Bankruptcy Contract Rate Interest in Solvent Debtor Case
    2022-10-17

    “…[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, Fifth Circuit
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Has the Make-Whole Been Plugged? The Fifth Circuit’s Latest Opinion in Ultra Petroleum
    2022-10-17

    On October 14, 2022, the U.S.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Sidley Austin LLP, Bankruptcy, Fifth Circuit, U.S. Court of Appeals
    Location:
    USA
    Firm:
    Sidley Austin LLP
    Fifth Circuit: District Court Improperly Referred Bankruptcy Appeal to Magistrate Judge for Final Determination
    2022-09-28

    Federal district courts, with the consent of the parties, are authorized by statute to refer "civil matter[s]" to magistrate judges for the purpose of conducting all proceedings and entering a judgment in the litigation. In the case of an appeal to a district court from a bankruptcy court, however, this statutory authority arguably conflicts with another statutory provision dictating that appeals from a bankruptcy court order or judgment be heard by a "district court" or a "bankruptcy appellate panel." This apparent conflict was recently addressed by the U.S.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, US Congress, Supreme Court of the United States, Fifth Circuit
    Authors:
    Jane Rue Wittstein , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    A New Approach to Executory Contracts? Fifth Circuit Opens the Door for the Functional Approach
    2022-09-22

    In a decision holding that surety bonds are not executory contracts, the Fifth Circuit signaled that courts may in the future utilize the functional approach to determine if multiparty contracts are executory in nature. The case, filed in the United States Bankruptcy Court for the Middle District of Louisiana as In re Falcon V, L.L.C., concerned a $10.5 million surety agreement between the Debtor, Falcon V, L.L.C., and Argonaut Insurance Company (“Argonaut”).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Kean Miller LLP, Fifth Circuit
    Authors:
    Katilyn M. Hollowell
    Location:
    USA
    Firm:
    Kean Miller LLP
    Your Word is Your Bond: Fifth Circuit Court of Appeals Determines Surety Bonds are Not Executory Contracts Even Through Multiparty Approach in In re Falcon V, LLC
    2022-08-22

    Following an August 11, 2022 opinion from the Court of Appeals for the Fifth Circuit, certain irrevocable surety bonds will not be considered executory contracts in bankruptcy, even when a court applies a functional multiparty approach to the traditional Countryman definition of an executory contract.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Bracewell LLP, Fifth Circuit
    Authors:
    Jonathan Lozano , Jason G. Cohen
    Location:
    USA
    Firm:
    Bracewell LLP
    Section 363(m) Circuit Split Headed for SCOTUS Review
    2022-07-19

    The Supreme Court of the United States granted certiorari on June 27, 2022, to determine whether section 363(m) of the Bankruptcy Code—concerning appellate review of bankruptcy court sale orders—is jurisdictional or only limits the remedy an appellate court may fashion. This issue has split the circuit courts of appeals. The case is set for oral argument in the October 2022 term.

    Filed under:
    USA, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Vinson & Elkins LLP, Bankruptcy, Leases, Supreme Court of the United States, Second Circuit, Fifth Circuit
    Authors:
    David S. Meyer , William L. Wallander , Steven M. Abramowitz , Steven Zundell , Elias Medina
    Location:
    USA
    Firm:
    Vinson & Elkins LLP
    Fifth Circuit Ruling Gives Commercial Lessees Likely Protection In Bankruptcy Court Free and Clear Asset Sales
    2022-04-27

    A bankruptcy court gave "unnecessary and likely incorrect" reasoning to support its "excessively broad proposition that sales free and clear under [Bankruptcy Code ("Code")] Section 363 override, and essentially render nugatory, the critical lessee protections against a debtor-lessor under [Code] 365(h)," said the U.S. Court of Appeals for the Fifth Circuit on Feb. 16, 2022. In re Royal Bistro, LLC, 2022 WL 499938, *1-*2 (5th Cir. Feb. 16, 2022).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Fifth Circuit
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Equitable Mootness Applied Again: The Fifth Circuit Refuses to Hear an Appeal
    2022-04-18

    The Fifth Circuit recently dismissed an appeal of a confirmation order as equitably moot. The decision was based on three key factors: the appellant hadn’t obtained a stay pending appeal, the plan had been substantially consummated, and practical relief couldn’t be fashioned if the plan was unwound.Talarico v. Ultra Petro. Corp. (In re Ultra Petro. Corp.), Case No. 21-20049, 2022 U.S. App. LEXIS 8941 (5th Cir. Apr. 1, 2022).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Patterson Belknap Webb & Tyler LLP, Bankruptcy, Coronavirus, Ninth Circuit, Fifth Circuit
    Authors:
    Daniel A. Lowenthal
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP

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