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    Tribune 2: No Actual Fraud Imputation in Avoidance Litigation Absent Control by Corporate Actors
    2017-04-13

    With its landmark ruling in Deutsche Bank Trust Co. Ams. v. Large Private Beneficial Owners (In re Tribune Co. Fraudulent Conveyance Litig.), 818 F.3d 98 (2d Cir. 2016) ("Tribune 1"), the U.S. Court of Appeals for the Second Circuit held that claims asserted by creditors of the Tribune Co. ("Tribune") seeking to avoid payments to shareholders during a 2007 leveraged buyout ("LBO") as constructive fraudulent transfers were preempted by the "safe harbor" under section 546(e) of the Bankruptcy Code.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White Collar Crime, Jones Day, Shareholder, Fraud, Second Circuit
    Authors:
    Mark G. Douglas , Aaron M. Gober-Sims
    Location:
    USA
    Firm:
    Jones Day
    The Year in Bankruptcy: 2016
    2017-01-26

    The watchword for 2016 in much of the world was "upheaval." Two unanticipated events dominated the political, business, and financial headlines of 2016, at least in Europe and the Americas: the Brexit referendum result and the election of Donald J .Trump as the 45th President of the United States. The refugee crisis, the commodities meltdown, Brazil’s economic collapse, China’s growing pains, Russian belligerency and alleged cyber-meddling in the U.S. election, the war on terrorism, and the beginning of the end of the bloody Syrian civil war seemed to pale by comparison.

    Filed under:
    Global, Insolvency & Restructuring, Jones Day
    Authors:
    Charles M. Oellermann , Mark G. Douglas
    Location:
    Global
    Firm:
    Jones Day
    Legislative Update - July/August 2016
    2016-08-08

    On June 30, 2016, President Obama gave his imprimatur to the Puerto Rico Oversight, Management, and Economic Stability Act, Pub. L. No. 114-187 (2016) (“PROMESA”) (H.R. 5278 and S. 2328).

    Filed under:
    Puerto Rico, USA, Insolvency & Restructuring, Litigation, Public, Jones Day
    Authors:
    Mark G. Douglas
    Location:
    Puerto Rico, USA
    Firm:
    Jones Day
    Energy Future Wins Round Two in Fight to Skirt Liability for Make-Whole Premiums
    2016-04-01

    In February 2016, Energy Future Holdings Corp. (“EF”), which obtained confirmation of a chapter 11 plan on December 3, 2015, prevailed at the district court level in related appeals brought by first- and second-lien noteholders of bankruptcy court orders disallowing the noteholders’ claims for make-whole premiums allegedly due under their note indentures. The forum in this hotly contested and long-running dispute has now moved to the Third Circuit Court of Appeals.

    Enforceability of Make-Whole Premiums in Bankruptcy

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Jones Day, United States bankruptcy court
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Funds earmarked by section 363 purchaser to pay creditors need not be distributed in accordance with Bankruptcy Code’s priority scheme
    2015-11-17

    A ruling recently handed down by the U.S. Court of Appeals for the Third Circuit may provide significant flexibility to debtors in that circuit who are implementing sales of substantially all of their assets. In In re LCI Holding Company, Inc., 2015 BL 295784 (3d Cir. Sept.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Debtor, Unsecured debt, Title 11 of the US Code, Third Circuit
    Authors:
    Timothy Hoffmann , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Wellness International: U.S. Supreme Court rules that bankruptcy courts may adjudicate “Stern claims” with litigants’ consent
    2015-07-31

    "In Wellness Int’l Network, Ltd. v. Sharif, ___ U.S. ___, 135 S. Ct. 1932 (2015), a divided U.S. Supreme Court resolved the circuit split regarding whether a bankruptcy court may, with the consent of the litigants, adjudicate a claim that, though statutorily denominated as “core,” is not otherwise constitutionally determinable by a bankruptcy judge. The majority held that so long as consent—whether express or implied—is “knowing and voluntary,” Article III of the U.S. Constitution is not violated by a bankruptcy court’s adjudication of such a claim.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Article III US Constitution, United States bankruptcy court
    Authors:
    Jane Rue Wittstein
    Location:
    USA
    Firm:
    Jones Day
    European perspective in brief
    2015-03-31

    Europe has struggled during the last several years to triage a long series of critical blows to the economies of the 28 countries that comprise the European Union, as well as the collective viability of eurozone economies. Here we provide a snapshot of some recent developments regarding insolvency, restructuring, and related issues in the EU.

    Filed under:
    Netherlands, Insolvency & Restructuring, Litigation, Jones Day
    Authors:
    Mark G. Douglas
    Location:
    Netherlands
    Firm:
    Jones Day
    Confirmation Denied: Chapter 11 Plan Did Not Satisfy New Value Exception to Absolute Priority Rule Without Market Testing
    2022-03-04

    When existing interest holders attempt to retain ownership of a chapter 11 debtor after confirmation of a nonconsensual plan of reorganization, the Bankruptcy Code's plan confirmation requirements, including well-established rules regarding the classification and treatment of creditor claims and equity interests, can create formidable impediments to their reorganization strategy. In In re Platinum Corral, LLC, 2022 WL 127431 (Bankr. E.D.N.C. Jan. 13, 2022), the U.S.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, CARES Act 2020 (USA), SCOTUS
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Another Bankruptcy Court Rules the "Solvent Debtor Exception" Survived Enactment of the Bankruptcy Code
    2021-11-15

    Whether the pre-Bankruptcy Code "solvent debtor exception" requiring the payment of postpetition interest to dissenting unsecured creditors under a chapter 11 plan survived the enactment of the Bankruptcy Code in 1978 has been the subject of a handful of recent court rulings. This is, perhaps, most notably true of the chapter 11 case of Ultra Petroleum Corp. in connection with a protracted battle over the debtor's obligation to pay make-whole premiums to unsecured noteholders.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day
    Authors:
    Paul M. Green , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Bankruptcy Court Recharacterizes Purported Loan as Equity
    2021-05-21

    It is generally recognized that a bankruptcy court has the power—either equitable or statutory—to recharacterize a purported debt as equity if the substance of the transaction belies the labels the parties have given it. A ruling handed down by the U.S. Bankruptcy Court for the Southern District of New York provides a textbook example of such a recharacterization. In In re Live Primary, LLC, 2021 WL 772248 (Bankr. S.D.N.Y. Mar.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, US District Court for SDNY
    Authors:
    Paul M. Green , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day

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