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    Use of cash collateral to pay prepetition debt not prohibited by <i>Jevic</i>
    2020-06-26

    Use, sale or lease of estate property outside ordinary course
    Special rules for use of cash collateral

    Jevic and distributions inconsistent with the Bankruptcy Code's priority scheme
    Claar Cellars
    The Bankruptcy Court's Ruling

    Filed under:
    USA, Insolvency & Restructuring, Jones Day
    Authors:
    Charles M. Oellermann , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Legislative Update
    2020-06-03

    Coronavirus Aid, Relief, and Economic Security (CARES) Act

    Filed under:
    USA, Derivatives, Employment & Labor, Insolvency & Restructuring, Litigation, Jones Day, Donald Trump, Coronavirus, Paycheck Protection Program, Commodity Futures Trading Commission (USA), US Senate, US House of Representatives, Title 11 of the US Code, CARES Act 2020 (USA)
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    From the Top in Brief
    2020-06-03

    The U.S. Supreme Court recently handed down three rulings potentially impacting bankruptcy cases.

    Nunc Pro TuncRelief

    In Roman Catholic Archdiocese of San Juan v. Acevedo Feliciano, No. 18-921, 2020 WL 871715 (U.S. Feb. 24, 2020), the Court circumscribed the use of nunc pro tunc ("now for then") orders that make relief ordered by a court apply retroactively to an earlier point in time.

    Filed under:
    USA, Banking, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Jones Day
    Authors:
    Brad B. Erens , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Use of Cash Collateral to Pay Prepetition Debt Not Prohibited by Jevic
    2020-06-03

    The ability of a bankruptcy trustee or a chapter 11 debtor-in-possession ("DIP") to use "cash collateral" during the course of a bankruptcy case may be vital to the debtor's prospects for a successful reorganization. However, because of the unique nature of cash collateral, the Bankruptcy Code sets forth special rules that apply to the nonconsensual use of such collateral to protect the interests of the secured creditor involved. The U.S. Bankruptcy Court for the Eastern District of Washington examined these requirements in In re Claar Cellars, LLC, 2020 WL 1238924 (Bankr. E.D.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Title 11 of the US Code, Supreme Court of the United States
    Authors:
    Charles M. Oellermann , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    European Cross-Border Attachment Order Added to Italian Protective Tools for Creditors
    2020-12-16

    Italy has fully integrated the European Account Preservation Order into its procedures alongside existing protective tools available to creditors, who can now also request that their debtors' bank accounts in the European Union be frozen directly by the account bank.

    On October 18, 2020 Italy adapted its civil procedure rules to incorporate the European Account Preservation Order ("EAPO") (introduced by EU Regulation 655/2014, in force since January 2017 ("the Regulation")) as an additional protective measure in favor of creditors.

    Filed under:
    European Union, Banking, Insolvency & Restructuring, Litigation, Jones Day
    Authors:
    Francesco Squerzoni , Vinicio Trombetti
    Location:
    European Union
    Firm:
    Jones Day
    Cram-Down Chapter 11 Plan Need Not Strictly Enforce Subordination Agreement
    2020-12-11

    In the latest chapter of more than a decade of contentious litigation surrounding the 2007 leveraged buyout ("LBO") and ensuing bankruptcy of media conglomerate Tribune Co. ("Tribune"), the U.S. Court of Appeals for the Third Circuit affirmed lower court rulings that Tribune's 2012 chapter 11 plan did not unfairly discriminate against senior noteholders who contended that their distributions were reduced because the plan improperly failed to strictly enforce pre-bankruptcy subordination agreements. In In re Tribune Co., 972 F.3d 228 (3d Cir.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Leveraged buyout, Third Circuit, U.S. Court of Appeals
    Authors:
    Brad B. Erens , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    New Appellate Court Ruling on Priority of Straddle-Year Taxes in Bankruptcy
    2020-12-11

    A basic tenet of bankruptcy law, premised on the legal separateness of a debtor prior to filing for bankruptcy and the estate created upon a bankruptcy filing, is that prepetition debts are generally treated differently than debts incurred by the estate, which are generally treated as priority administrative expenses. However, this seemingly straightforward principle is sometimes difficult to apply in cases where a debt technically "arose" or "was incurred" prepetition, but does not become payable until sometime during the bankruptcy case.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Tax, Jones Day, Internal Revenue Service (USA), US Department of Justice
    Authors:
    Brad B. Erens , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Tenth Circuit BAP: Bankruptcy Courts Have Exclusive Jurisdiction to Determine Whether Claims Are Estate Property
    2020-12-11

    In Hafen v. Adams (In re Hafen), 616 B.R. 570 (B.A.P. 10th Cir. 2020), a bankruptcy appellate panel from the Tenth Circuit ("BAP") held that the bankruptcy court is the only court with subject-matter jurisdiction to decide whether a claim or cause of action is property of a debtors' bankruptcy estate. As a consequence, the BAP held that the bankruptcy court abused its discretion by permitting a state court to determine whether creditors had "standing" to sue third-party recipients of allegedly fraudulent transfers.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Tenth Circuit
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    DIP Financing Agreement Initially Rejected as Sub Rosa Chapter 11 Plan
    2020-12-11

    Postpetition financing provided by pre-bankruptcy shareholders or other "insiders" is not uncommon in chapter 11 cases as a way to fund a plan of reorganization and allow old shareholders to retain an ownership interest in the reorganized entity. The practice is typically sanctioned by bankruptcy courts under an exception—the "new value" exception—to the "absolute priority rule," which prohibits shareholders and junior creditors from receiving any distribution under a plan on account of their interests or claims unless senior creditors are paid in full or agree otherwise.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Libor, Due diligence, Coronavirus
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    New York District Court Expands the Scope of the Bankruptcy Safe Harbor for LBO Payments
    2020-12-11

    In 2019, the U.S. Court of Appeals for the Second Circuit made headlines when it ruled that creditors' state law fraudulent transfer claims arising from the 2007 leveraged buyout ("LBO") of Tribune Co. ("Tribune") were preempted by the safe harbor for certain securities, commodity or forward contract payments set forth in section 546(e) of the Bankruptcy Code. In In re Tribune Co. Fraudulent Conveyance Litig., 946 F.3d 66 (2d Cir. 2019), petition for cert. filed, No. 20-8-07102020, 2020 WL 3891501 (U.S.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Jones Day, Private equity, Second Circuit, U.S. Court of Appeals
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day

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