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    Second Circuit Rules on Chapter 11 Cram-Down, Make-Whole, and Subordination Issues
    2017-10-25

    In Short

    The Situation: In In re MPM Silicones, L.L.C., secured noteholders argued that replacement notes distributed to them under a cram-down chapter 11 plan should bear market-rate interest rather than the lower formula rate proposed in the plan and that they were entitled to a make-whole premium.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Jones Day, SCOTUS, Second Circuit, United States bankruptcy court, Sixth Circuit
    Authors:
    Bruce Bennett , Sidney P. Levinson , Brad B. Erens
    Location:
    USA
    Firm:
    Jones Day
    Section 553 of the Bankruptcy Code Preserves Rather Than Creates Setoff Rights
    2017-08-11

    In Feltman v. Noor Staffing Grp., LLC (In re Corp. Res. Servs. Inc.), 564 B.R. 196 (Bankr. S.D.N.Y. 2017), the bankruptcy court considered whether section 553 of the Bankruptcy Code creates a right of setoff when no such right is available under applicable nonbankruptcy law. The court concluded that section 553 does not create an independent federal right of setoff, but merely preserves any such right that exists under applicable nonbankruptcy law.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Jones Day, United States bankruptcy court
    Authors:
    Anna Kordas , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Eleventh Circuit Addresses Difference Between Constitutional and Equitable Mootness
    2017-05-31

    In Beem v. Ferguson (In re Ferguson), 2017 BL 101650 (11th Cir. Mar. 30, 2017), the U.S. Court of Appeals for the Eleventh Circuit addressed the distinction between constitutional mootness (a jurisdictional issue that precludes court review of an appeal) and equitable mootness (which allows a court to exercise its discretion to refuse to hear an appeal under certain circumstances). The Eleventh Circuit ruled that an appeal from an order confirming a chapter 11 plan was not constitutionally moot because an "actual case or controversy" existed.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Eleventh Circuit
    Authors:
    Jane Rue Wittstein , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    From the Top
    2017-01-27

    The U.S. Supreme Court issued two rulings in 2016 involving issues of bankruptcy law.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White Collar Crime, Jones Day, Credit (finance), Fair Debt Collection Practices Act 1977 (USA), SCOTUS, Eleventh Circuit, Third Circuit
    Location:
    USA
    Firm:
    Jones Day
    New York’s Restrictive Interpretation of Common Interest Doctrine Unlikely to Have Significant Impact in Bankruptcy
    2016-09-27

    On June 9, 2016, the New York State Court of Appeals, in Ambac Assur. Corp. v. Countrywide Home Loans, 2016 BL 184648 (N.Y. June 9, 2016), reversed a lower court decision, consistent with the overwhelming majority of federal court decisions, that the common interest doctrine under New York law is not limited to communications made in connection with pending or reasonably anticipated litigation.

    Filed under:
    USA, New York, Banking, Corporate Finance/M&A, Insolvency & Restructuring, Legal Practice, Litigation, Jones Day, Bankruptcy, US District Court for SDNY
    Authors:
    Aaron M. Gober-Sims
    Location:
    USA
    Firm:
    Jones Day
    Sovereign Debt Update - May/June 2016
    2016-06-01

    The Republic of Argentina returned to global debt markets after a 15-year absence on April 19, 2016, when it sold $16 billion in bonds to fund a series of landmark settlements reached earlier this year with holdout bondholders from the South American nation’s 2005 and 2010 debt restructurings. This latest development in the more than decade-long battle between Argentina and the holdouts—led by hedge funds Aurelius Capital Master Ltd. (“Aurelius”) and NML Capital Ltd.

    Filed under:
    Argentina, USA, Banking, Insolvency & Restructuring, Litigation, Jones Day, Bond (finance), Injunction, Debt, Default (finance)
    Authors:
    Mark G. Douglas
    Location:
    Argentina, USA
    Firm:
    Jones Day
    Notable Plan Confirmations or Exits From Bankruptcy in 2015
    2016-02-01

    Click here to view table.

    Filed under:
    USA, Insolvency & Restructuring, Jones Day
    Location:
    USA
    Firm:
    Jones Day
    Energy Future redux: no automatic stay relief to decelerate notes and collect make-whole premiums
    2015-10-01

    In Del. Trust Co. v. Energy Future Intermediate Holding Co. LLC (In re Energy Future Holdings Corp.), 527 B.R. 178 (Bankr. D. Del. 2015), the bankruptcy court ruled that, even though a chapter 11 debtor repaid certain bonds prior to maturity, a "make-whole" premium was not payable under the plain terms of the bond indenture because automatic acceleration of the debt triggered by the debtor's chapter 11 filing was not a "voluntary" repayment.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Private Client & Offshore Services, Jones Day, Debtor, US District Court for SDNY
    Authors:
    Jonathan M. Fisher , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    No decision from Eighth Circuit on validity of Ponzi scheme presumption
    2015-05-28

    In Ritchie Capital Mgmt., LLC v. Stoebner, 779 F.3d 857 (8th Cir. 2015), the U.S. Court of Appeals for the Eighth Circuit affirmed a bankruptcy court’s decision that transfers of trademark patents were avoidable under section 548(a)(1)(A) of the Bankruptcy Code and Minnesota state law because they were made with the intent to defraud creditors.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White Collar Crime, Jones Day, Fraud, Federal Reporter, Eighth Circuit
    Authors:
    Dan T. Moss
    Location:
    USA
    Firm:
    Jones Day
    Delaware Court Holds Rejection Eliminates Non-Debtor's Exclusive Right to Provide Services to the Debtor
    2022-01-14

    Nine Point Energy Holdings, Inc. and its affiliates (collectively, "Nine Point" or "Nine Point debtors") constituted an oil and gas production and exploration company that sought to reorganize in chapter 11 through a going concern sale of substantially all of their assets. To maximize value, Nine Point sought to sell those assets free and clear of its midstream services contracts, which included provisions that prevented Nine Point from acquiring midstream services from anyone other than its counterparty, Caliber North Dakota, LLC ("Caliber").

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Jones Day, SCOTUS
    Location:
    USA
    Firm:
    Jones Day

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