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    “Silent second lender’s” efforts to seek the appointment of an examiner are sidelined by its prepetition waiver
    2010-08-18

    Introduction

    The recent decision in the case of In re Erickson Retirement Communities, LLC, 425 B.R. 309 (Bankr. N.D. Tex. 2010) provides ammunition for those opposing the appointment of an examiner in a debtor’s Chapter 11 case and a cautionary tale for lenders entering into subordination agreements.

    Filed under:
    USA, Michigan, Insolvency & Restructuring, Litigation, Chadbourne & Parke LLP, Debtor, Unsecured debt, Fraud, Waiver, Interest, Debt, Consent, Standing (law), Liquidation, US Code, Title 11 of the US Code, United States bankruptcy court
    Authors:
    Meghan S. Towers
    Location:
    USA
    Firm:
    Chadbourne & Parke LLP
    Collection against Collezione
    2010-08-17

    Two items of interest in the on-going saga of intellectual property enforcement against bankrupt Collezione Europa and its principals, Paul and Leonard Frankel.

    Filed under:
    USA, New Jersey, North Carolina, Copyrights, Insolvency & Restructuring, Litigation, Womble Bond Dickinson (US) LLP, Confidentiality, Bankruptcy, Interest, Discovery, Personal jurisdiction, Design patent, Trademark infringement, Default (law)
    Authors:
    Jacob S. Wharton
    Location:
    USA
    Firm:
    Womble Bond Dickinson (US) LLP
    Court rules D&O policy’s Side-A benefits not property of bankrupt estate
    2010-09-09

    A Maryland bankruptcy court has declared that Side A benefits under a D&O policy are not property of the bankrupt estate, with the result that two former executives who have been accused of making illegal payments and diverting funds from their former employer to start a new venture may be able to recoup certain defense costs. In re: TMST, Inc. f/k/a Thornburg Mortgage, Inc., et al., Docket No. 09-17787 (Bankr.D.Md. Aug. 17, 2010).

    Filed under:
    USA, Insolvency & Restructuring, Insurance, Litigation, Locke Lord LLP, Bankruptcy, Costs in English law, Debtor, Breach of contract, Interest, Good faith, Trustee, United States bankruptcy court
    Authors:
    Victoria Anderson , Jeanne Kohler
    Location:
    USA
    Firm:
    Locke Lord LLP
    Bankruptcy judge orders personal info destroyed
    2010-09-07

    After receiving a letter from David Vladeck, the Director of the Bureau of Consumer Affairs at the Federal Trade Commission, a bankruptcy judge allowed the destruction of personal information of gay teens who subscribed to the now defunct XY magazine.

    Filed under:
    USA, Insolvency & Restructuring, IT & Data Protection, Litigation, Manatt Phelps & Phillips LLP, Bankruptcy, Information privacy, Consumer protection, Interest, Personally identifiable information, Subscription business model, Federal Trade Commission (USA), United States bankruptcy court
    Location:
    USA
    Firm:
    Manatt Phelps & Phillips LLP
    Texas district court affirms the contractual default interest rate where the debtor is solvent
    2010-09-13

    Good v RMR Investments, Inc, 428 BR 249 (ED Texas, March 31, 2010)

    CASE SNAPSHOT

    A secured creditor in a chapter 11 case objected to the confirmation of the reorganization plan of the debtor, arguing that the proper “cramdown” interest rate (court-modified rate) was the pre-petition contractual default rate, rather than the significantly lower cramdown rate. After the debtor appealed, the District Court affirmed, holding that utilizing the contract rate of interest was appropriate because the debtor was solvent.

    Filed under:
    USA, Texas, Insolvency & Restructuring, Litigation, Reed Smith LLP, Debtor, Interest, Limited liability company, Maturity (finance), Default (finance), Secured creditor, Deed of trust (real estate), Title 11 of the US Code, United States bankruptcy court, Fifth Circuit
    Authors:
    Ann E. Pille
    Location:
    USA
    Firm:
    Reed Smith LLP
    Delaware Bankruptcy Court finds appointment of examiner not required every time the statutory debt threshold is exceeded
    2010-09-13

    In re Spansion, Inc, 426 BR 114 (Bankr Del April 1, 2010)

    CASE SNAPSHOT

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Reed Smith LLP, Debtor, Unsecured debt, Fraud, Interest, Misconduct, Discovery, Debt, Vacated judgment, Misrepresentation, Title 11 of the US Code, United States bankruptcy court
    Authors:
    Elizabeth A. McGovern
    Location:
    USA
    Firm:
    Reed Smith LLP
    Broader economic woes may have played a part in the court’s decision to dismiss allegations of lender overreaching
    2010-09-13

    American Consolidated Transportation Companies, Inc v RBS Citizens NA (In re American Consolidated Transportation Companies, Inc), Adversary No 10-00154, Bankruptcy No 09-26062 (Bankr ND Ill July 13, 2010)

    CASE SNAPSHOT

    Filed under:
    USA, Illinois, Banking, Insolvency & Restructuring, Litigation, Reed Smith LLP, Bankruptcy, Letter of credit, Credit (finance), Debtor, Interest, Swap (finance), Liquidation, Good faith, Cashflow, Default (finance), Secured loan, The Royal Bank of Scotland, United States bankruptcy court
    Authors:
    Brian M. Schenker
    Location:
    USA
    Firm:
    Reed Smith LLP
    Court invokes prudent man standard to uphold collateral trustee’s litigation reserve fund
    2010-09-20

    After nearly fifteen years of unsuccessful attempts to recover $71 million worth of securitized bonds after the 1990 bankruptcy of Continental Airlines, Inc., Bluebird Partners L.P. may have suffered its final defeat. In a recent decision by a New York trial court in Bluebird Partners v. The Bank of New York, et al., No. 601016/1996 (New York Co. June 7, 2010), the court granted summary judgment to defendant Bank of New York (“BNY”), holding that the bank behaved prudently in establishing a litigation reserve fund as the collateral trustee in the airline’s bankruptcy.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Chadbourne & Parke LLP, Bond (finance), Bankruptcy, Collateral (finance), Breach of contract, Fiduciary, Interest, Secured loan, Bank of New York Mellon, Trustee
    Authors:
    Thomas J. Hall , Laura Rowntree
    Location:
    USA
    Firm:
    Chadbourne & Parke LLP
    Payments received by brokerages used in a fraudulent scheme cannot be avoided
    2010-09-20

    On September 14th, a Bankruptcy Court entered partial summary judgment in favor of defendants, brokerages through whom the debtor conducted a fraudulent stock lending scheme. The Chapter 7 bankruptcy trustee cannot avoid as fraudulent transfers funds and stock received by defendants directly from the victims of the scheme, margin interest paid to defendants by the debtor, and cash transfers that the debtor directly deposited into the brokerage accounts in the year prior to the bankruptcy filing.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, White Collar Crime, Winston & Strawn LLP, Bankruptcy, Debtor, Fraud, Interest, Limited liability company, Margin (finance), Brokerage firm, United States bankruptcy court
    Location:
    USA
    Firm:
    Winston & Strawn LLP
    Successor employers - meet the new boss, same as the old boss
    2010-09-29

    Suppose a retailer declares bankruptcy. Several of its leases are sold off to another retail chain, which then remodels the stores, stocks them with its own merchandise, and opens them under its own name. If this retailer hires some of the bankrupt company's employees, are those employees new hires under the FMLA, or might they have the right to take FMLA leave immediately, without waiting 12 months or working 1250 hours for the new company?

    Filed under:
    USA, Employment & Labor, Insolvency & Restructuring, Litigation, Franczek Radelet PC, Bankruptcy, Retail, Interest, Margin (finance), Family and Medical Leave Act 1993 (USA), Ninth Circuit
    Authors:
    William R. Pokorny
    Location:
    USA
    Firm:
    Franczek Radelet PC

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