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    Delaware Bankruptcy Court: No Implied Assumption of Executory Contracts in Bankruptcy
    2022-01-14

    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. However, the Bankruptcy Code and the Federal Rules of Bankruptcy Procedure ("Bankruptcy Rules") establish strict requirements for the assumption, assignment, and rejection of contracts and leases. The U.S.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Jones Day, Medicare
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    N.Y. District Court Rules that Chapter 15 Recognition Not Required to Enforce Foreign Bankruptcy Injunction
    2021-09-23

    U.S. courts have a long-standing tradition of recognizing or enforcing the laws and court rulings of other nations as an exercise of international "comity." It has been generally understood that recognition of a foreign bankruptcy proceeding under chapter 15 is a prerequisite to a U.S. court enforcing, under the doctrine of comity, an order or judgment entered in a foreign bankruptcy proceeding or a provision in foreign bankruptcy law applicable to a debtor in such a proceeding.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Jones Day, US District Court for SDNY
    Authors:
    Corinne Ball , Dan T. Moss , Michael C. Schneidereit , Isel M. Perez , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Business Restructuring Review | January-February 2021
    2021-02-12

    In This Issue:

    The Year in Bankruptcy: 2020

    A brief chronicle of the year's notable developments in corporate bankruptcy and restructuring. [read more …]

    Focus on Health Care Provider Bankruptcies

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, HM Revenue and Customs (UK)
    Location:
    USA
    Firm:
    Jones Day
    Delaware Bankruptcy Court Rules that Bankruptcy Blocking Right in Debtor's Corporate Charter Violates Federal Public Policy
    2020-10-15

    Courts sometimes disagree over whether provisions in a borrower's organizational documents designed to prevent the borrower from filing for bankruptcy are enforceable as a matter of federal public policy or applicable state law. There has been a handful of court rulings addressing this issue in recent years, with mixed results.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Jones Day, Coronavirus
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    From the Top in Brief: U.S. Supreme Court Bankruptcy Roundup
    2020-08-13

    Appointment of PROMESA Financial Oversight Board Was Constitutional

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, SCOTUS
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Stay Extended to Bar Litigation Against Chapter 15 Foreign Representatives but No Ruling on Extraterritoriality of Barton Doctrine
    2020-02-15

    In McKillen v. Wallace (In re Irish Bank Resolution Corp. Ltd.), 2019 WL 4740249 (D. Del. Sept. 27, 2019), the U.S. District Court for the District of Delaware had an opportunity to consider, as an apparent matter of first impression, whether the U.S. common law "Barton Doctrine" applies extraterritorially. One of the issues considered by the district court on appeal was whether parties attempting to sue a foreign representative in a chapter 15 case must first obtain permission to sue from the foreign court that appointed the foreign representative.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, US House of Representatives
    Authors:
    Dan T. Moss , Mark G. Douglas
    Location:
    Ireland, USA
    Firm:
    Jones Day
    Presumption of Filed Claim's Validity and Amount Does Not Apply in Proceeding to Determine Secured Amount of Claim
    2019-09-23

    The Bankruptcy Code creates a rebuttable presumption that a proof of claim is prima facie evidence of the claim's validity and amount. Courts disagree, however, over whether that presumption also applies in a proceeding to determine the secured amount of the creditor's claim. The U.S. Bankruptcy Court for the Eastern District of California weighed in on this issue in In re Bassett, 2019 WL 993302 (Bankr. E.D. Cal. Feb. 26, 2019).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Title 11 of the US Code, United States bankruptcy court
    Authors:
    Mark G. Douglas , Paul M. Green
    Location:
    USA
    Firm:
    Jones Day
    Bankruptcy Court in Chapter 15 Case Refuses to Extend Comity to Gibbs Rule in Enforcing Croatian Settlement Modifying English-Law Debt
    2019-04-16

    For more than a century, courts in England and Wales have refused to recognize or enforce foreign court judgments or proceedings that discharge or compromise debts governed by English law. In accordance with a rule (the "Gibbs Rule") stated in an 1890 decision by the English Court of Appeal, creditors holding debt governed by English law may still sue to recover the full amount of their debts in England even if such debts have been discharged or modified in connection with a non-U.K.

    Filed under:
    United Kingdom, USA, Insolvency & Restructuring, Litigation, Jones Day, Debt, Comity, Second Circuit, United States bankruptcy court, US District Court for SDNY
    Authors:
    Dan T. Moss , Mark G. Douglas
    Location:
    United Kingdom, USA
    Firm:
    Jones Day
    Business as Mutual: Floating Charges No Obstacle to Mutual Set-Off Agreements
    2018-11-29

    In Short

    The Situation: Section 553C of the Corporations Act 2001 (WA) ("Act")provides that if a creditor and a company in liquidation have mutual dealings, the creditor must offset any sum the creditor owes to the company in liquidation against debt owed by the company.

    The Question: Does the existence of a third party security interest over circulating assets (floating charge) which are intended to be set off against other debts prevent the dealings from being "mutual"?

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Litigation, Jones Day, Liquidation, Corporations Act 2001 (Australia)
    Authors:
    Lucas Wilk , Evan J. Sylwestrzak , Roger Dobson
    Location:
    Australia
    Firm:
    Jones Day
    U.S. Supreme Court Narrows Scope of Section 546(e)’s Safe Harbor for Securities Transaction Payments
    2018-04-17

    On February 27, 2018, the U.S. Supreme Court issued a highly anticipated ruling resolving a long-standing circuit split over the scope of the Bankruptcy Code’s "safe harbor" provision exempting certain securities transaction payments from avoidance as fraudulent transfers. In Merit Management Group LP v. FTI Consulting Inc., 2018 BL 65569, No. 16-784 (U.S. Feb.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, SCOTUS, Eleventh Circuit, Seventh Circuit
    Authors:
    Brad B. Erens , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day

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