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    Enron redux: round two goes to claims purchasers/traders
    2007-10-01

    In previous editions of the Business Restructuring Review, we reported on a pair of highly controversial rulings handed down in late 2005 and early 2006 by the New York bankruptcy court overseeing the chapter 11 cases of embattled energy broker Enron Corporation and its affiliates. In the first, Bankruptcy Judge Arthur J. Gonzalez held that a claim is subject to equitable subordination under section 510(c) of the Bankruptcy Code even if it is assigned to a third-party transferee who was not involved in any misconduct committed by the original holder of the debt.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Shareholder, Security (finance), Fraud, Fiduciary, Common law, Asset forfeiture, Citibank, Enron, Title 11 of the US Code, United States bankruptcy court
    Location:
    USA
    Firm:
    Jones Day
    Creditors’ committee lacks standing to seek equitable subordination
    2007-12-11

    The power to alter the relative priority of claims due to the misconduct of one creditor that causes injury to others is an important tool in the array of remedies available to a bankruptcy court in exercising its broad equitable powers. However, unlike provisions in the Bankruptcy Code that expressly authorize a bankruptcy trustee or chapter 11 debtor-in-possession (“DIP ”) to seek the imposition of equitable remedies, such as lien or transfer avoidance, the statutory authority for equitable subordination—section 510(c)—does not specify exactly who may seek subordination of a claim.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Shareholder, Debtor, Fiduciary, Interest, Misconduct, Misrepresentation, Standing (law), Title 11 of the US Code, Trustee, Second Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Jones Day
    Actual test and Footstar approach govern DIP’s ability to assume patent and technology license
    2007-12-11

    Lawmakers’ efforts to overhaul the nation’s bankruptcy laws two years ago as part of the sweeping reforms implemented by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA ”) failed to resolve a number of important business bankruptcy issues that have been and continue to be the subject of protracted debate among the bankruptcy and appellate courts.

    Filed under:
    USA, Insolvency & Restructuring, Intellectual Property, Litigation, Jones Day, Bankruptcy, Conflict of laws, Debtor, Consumer protection, Consideration, Consent, US Federal Government, Ninth Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Jones Day
    Bankruptcy rule changes take effect
    2007-12-11

    Amendments to the Federal Rules of Bankruptcy Procedure (the “Rules”) became effective on December 1, 2007, after having been approved by the U.S. Supreme Court in April and transmitted to Congress in June. These amendments, which apply to cases already pending on December 1, 2007 as well as cases filed thereafter, make some significant changes that will directly impact debtors, creditors and other stakeholders.

    Filed under:
    USA, Insolvency & Restructuring, Jones Day, Bankruptcy, Debtor, Collateral (finance), Substantive due process, United States bankruptcy court
    Location:
    USA
    Firm:
    Jones Day
    First ruling: new Section 1104(e) may not be a ticking time bomb after all
    2007-12-11

    A fundamental premise of chapter 11 is that a debtor’s prebankruptcy management is presumed to provide the most capable and dedicated leadership for the company and should be allowed to continue operating the company’s business and managing its assets in bankruptcy while devising a viable business plan or other workable exit strategy. The chapter 11 “debtor-in-possession” (“DIP ”) is a concept rooted strongly in modern U.S. bankruptcy jurisprudence. Still, the presumption can be overcome.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Shareholder, Debtor, Security (finance), Fraud, Fiduciary, Misconduct, Consideration, Liability (financial accounting), Liquidation, US Department of Justice, Trustee, United States bankruptcy court
    Location:
    USA
    Firm:
    Jones Day
    The year in bankruptcy
    2008-02-01

    In a tumultuous year that is likely to be remembered for its extreme market volatility, skyrocketing commodity prices (e.g., crude oil hovering at $100 per barrel), a slumping housing market, the weakest U.S. dollar in decades versus major currencies, a ballooning trade deficit with significant overseas trading partners such as China, Japan, and the EU , and an unprecedented proliferation of giant private equity deals that quickly fizzled when the subprime mortgage meltdown made inexpensive corporate credit nearly impossible to come by, 2007 was anything but mundane.

    Filed under:
    USA, Insolvency & Restructuring, Jones Day, Public company, Bankruptcy, Asset management, Subprime lending, Mortgage loan, Liquidation, Default (finance), Mortgage-backed security, Derivatives market
    Location:
    USA
    Firm:
    Jones Day
    Protecting the attorney-client privilege in corporate families
    2008-02-01

    The importance and practical benefits resulting from the use of the same in-house counsel for an entire corporate family are numerous. For example, the in-house attorneys are particularly familiar with the corporate family’s structure, can assist with joint public filings, and can expertly oversee the corporate family’s compliance with regulatory regimes. If a subsidiary in the corporate family becomes financially distressed, however, the creditors of the financially distressed entity may look to the parent corporation for recourse.

    Filed under:
    USA, Company & Commercial, Insolvency & Restructuring, Litigation, Jones Day, Bond (finance), Bankruptcy, Debtor, Fiduciary, Attorney-client privilege, Discovery, Misrepresentation, Motion to compel, Estoppel, Subsidiary, Bell Canada, United States bankruptcy court, Third Circuit
    Location:
    USA
    Firm:
    Jones Day
    When do rights of first refusal constitute an unenforceable restriction on assignment in bankruptcy?
    2008-02-01

    In the chapter 1 1 cases of Adelphia Communications Corporation and its subsidiaries, Adelphia sought to assume and assign more than 2,000 franchise agreements in connection with the proposed transfer of its cable operations to affiliates of Comcast Corporation and Time Warner Cable. Numerous local franchising authorities objected, arguing, among other things, that they had a right of first refusal under the agreements, and in some cases also under a local ordinance, to purchase the franchise on substantially the same terms and conditions.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Shareholder, Conflict of laws, Debtor, Deed, Joint venture, Legal burden of proof, Debtor in possession, Right of first refusal, Comcast, Time Warner, Title 11 of the US Code, United States bankruptcy court
    Location:
    USA
    Firm:
    Jones Day
    Two circuits examine chapter 11’s good-faith filing requirement
    2008-02-01

    Two circuit courts of appeal recently addressed whether a company filing chapter 11 for the sole purpose of retaining vital leases did so in good faith. In In re Capitol Food of Fields Corner, the First Circuit, in a matter of first impression on the issue of chapter 11’s implied good-faith filing requirement, declined to address the broader question, concluding that even if there is a good-faith filing requirement, a prima facie showing of bad faith could not be met because the debtor articulated several legitimate reasons for the necessity of reorganizing under chapter 11.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Jones Day, Bankruptcy, Debtor, Leasehold estate, Liquidation, Good faith, Bad faith, Prima facie, Title 11 of the US Code, United States bankruptcy court, First Circuit
    Location:
    USA
    Firm:
    Jones Day
    Refusal to participate in confirmation process dooms bid for stay of order confirming chapter 11 plan
    2008-04-22

    One of the hallmarks of chapter 11, and bankruptcy jurisprudence in general in the U.S., is the fundamental right of creditors and other stakeholders to have a meaningful voice in the proceedings concerning matters that affect their economic interests.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Debtor, Collateral (finance), Stakeholder (corporate), Trustee
    Location:
    USA
    Firm:
    Jones Day

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