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    In search of the meaning of "unreasonably small capital" in constructively fraudulent transfer avoidance litigation
    2014-12-02

    The meaning of "unreasonably small capital" in the context of constructively fraudulent transfer avoidance litigation is not spelled out in the Bankruptcy Code. As a result, bankruptcy courts have been called upon to fashion their own definitions of the term. Nonetheless, the courts that have considered the issue have mostly settled on some general concepts in fashioning such a definition. In Whyte ex rel. SemGroup Litig. Trust v. Ritchie SG Holdings, LLC (In re SemCrude, LP), 2014 BL 272343 (D. Del. Sept.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Debtor
    Authors:
    Jane Rue Wittstein , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Risk and opportunity amid falling oil prices
    2014-12-02

    The mainstream media have been trying to predict, on almost a daily basis, the causes of, and the winners and losers (mostly focused on the latter category) resulting from, the current volatility in oil and gas prices.

    Filed under:
    USA, Energy & Natural Resources, Insolvency & Restructuring, Litigation, Jones Day, Market liquidity
    Authors:
    Jeffrey A. Schlegel , William Prescott Mills Schwind , Jonathan M. Fisher , Paul M. Green
    Location:
    USA
    Firm:
    Jones Day
    Better late than never: claims filed years late did not waive subordination agreement priorities or warrant equitable subordination
    2014-12-01

    The Bankruptcy Code dictates the priority of distributions to the holders of allowed secured and unsecured claims in accordance with various statutory priority schemes. However, the Bankruptcy Code also provides that consensual pre-bankruptcy agreements between or among creditors that prioritize the right to receive payments from an obligor will generally be enforced in a bankruptcy case subsequently filed by the obligor.

    Filed under:
    USA, Insolvency & Restructuring, Jones Day, Waiver
    Authors:
    Joseph A. Florczak
    Location:
    USA
    Firm:
    Jones Day
    Voter's remorse: taking back an acceptance or rejection of a chapter 11 plan
    2014-12-01

    After a creditor or equity security holder casts its vote to accept or reject a chapter 11 plan, the vote can be changed or withdrawn "for cause shown" in accordance with Rule 3018(a) of the Federal Rules of Bankruptcy Procedure ("Rule 3018(a)"). However, "cause" is not defined in Rule 3018(a), and relatively few courts have addressed the meaning of the term in this context in reported decisions.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day
    Authors:
    Charles M. Oellermann , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    In brief: enforceability of waivers of the automatic stay
    2014-12-01

    An article appearing in the July/August 2014 issue of the Business Restructuring Review discusses a ruling by an Oregon bankruptcy court that held unenforceable a negative covenant in a limited liability company's operating agreement prohibiting the company from filing a bankruptcy petition, among other actions.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Debtor
    Authors:
    Michael J. Cohen
    Location:
    USA
    Firm:
    Jones Day
    DIP lender's knowledge of adverse claim to collateral scuttles mootness bar to appeal of financing order based on "good faith"
    2014-12-01

    The Bankruptcy Code provides certain protections to buyers of bankruptcy estate assets and to entities that extend credit or financing to a trustee or chapter 11 debtor-in-possession ("DIP"). However, these safe harbors are available only if a buyer or lender is deemed to have acted in "good faith," a concept that is not defined in the Bankruptcy Code.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Jones Day, Collateral (finance), Good faith, Fifth Circuit
    Authors:
    Paul M. Green , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Nine lessons from Detroit's chapter 9 case
    2014-11-20

    On November 7, 2014, Judge Steven Rhodes, the judge presiding over the City of Detroit's bankruptcy case, announced that he would confirm the City's proposed Plan of Adjustment (the "Plan"), including the creditor settlements contained within that Plan. A more detailed written opinion will follow, but the opinion read from the bench on November 7, together with an earlier opinion in this case, are among the most important precedents in U.S. municipal bankruptcy law.

    Filed under:
    USA, Michigan, Insolvency & Restructuring, Litigation, Public, Jones Day, Bankruptcy
    Authors:
    Bruce Bennett , Evan Miller , Beth Heifetz , Heather Lennox , Corinne Ball , David G. Heiman
    Location:
    USA
    Firm:
    Jones Day
    U.S. causes of action and attorney retainer fund sufficient assets for chapter 15 recognition
    2014-10-01

    In December 2013, the U.S. Court of Appeals for the Second Circuit held as a matter of first impression in Drawbridge Special Opportunities Fund LP v. Barnet (In re Barnet), 737 F.3d 238 (2d Cir. 2013), that section 109(a) of the Bankruptcy Code, which requires a debtor "under this title" to have a domicile, a place of business, or property in the U.S., applies in cases under chapter 15 of the Bankruptcy Code.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Debtor, Title 11 of the US Code, Second Circuit
    Authors:
    Pedro A. Jimenez , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Questioning the executoriness of trademark licenses in integrated agreements
    2014-10-01

    Protections added to the Bankruptcy Code in 1988 that give some intellectual property (“IP”) licensees the right to continued use of licensed property notwithstanding rejection of the underlying license agreement do not expressly apply to trademark licenses. As a consequence, a trademark licensee faces a great deal of uncertainty concerning its ability to continue using a licensed trademark if the licensor files for bankruptcy.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Trademarks, Jones Day
    Authors:
    Laura L. Swanson , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Uniform Voidable Transactions Act approved by Uniform Law Commission to replace UFTA
    2014-10-01

    On July 16, 2014, the Uniform Law Commission (the "Commission") approved a series of amendments to the Uniform Fraudulent Transfer Act (the "UFTA"), which is currently in force in 43 states (all states except Alaska, Kentucky, Louisiana, Maryland, New York, South Carolina, and Virginia).

    Filed under:
    USA, Insolvency & Restructuring, Jones Day, Debtor
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day

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