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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, Title 11 of the US Code, Citibank, Enron, United States bankruptcy court
    Location:
    USA
    Firm:
    Jones Day
    Business restructuring review: the year in bankruptcy: 2006
    2007-02-01

    In light of the continued favorable business climate and ample liquidity in the U.S., the falloff in business bankruptcy filings in 2006 should come as no big surprise. Unlike 2005, which added three new stars to the all-time hit parade of chapter 11 “mega” cases, 2006 saw no new additions to the Top 10 list for public-company chapter 11 filings. Overall, the number of business bankruptcy filings dropped 20 percent in fiscal year 2006, the fifth straight year a decline was reported, according to statistics released by the Administrative Office of the U.S. Courts in October of 2006.

    Filed under:
    USA, Insolvency & Restructuring, Jones Day, Public company, Bankruptcy, Debt, Subsidiary, Title 11 of the US Code, Ford Motor Company
    Location:
    USA
    Firm:
    Jones Day
    Delaware court finds "cause" to limit credit-bid to facilitate bankruptcy auction
    2014-03-31

    In In re Fisker Automotive Holdings, Inc., 2014 BL 13998 (Bankr. D. Del. Jan. 17, 2014), leave to app. denied, 2014 BL 33749 (D. Del. Feb. 7, 2014), certification denied, 2014 BL 37766 (D. Del. Feb. 12, 2014), a Delaware bankruptcy court limited a creditor's ability to credit bid its debt in connection with the sale of a hybrid car manufacturer's assets.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Jones Day, Debtor, Collateral (finance), Debt, Title 11 of the US Code, United States bankruptcy court
    Authors:
    Ben Rosenblum
    Location:
    USA
    Firm:
    Jones Day
    First impressions: commercial leases may be assumed within 210-day deadline and assigned later
    2013-11-21

    Commercial landlords hailed as a significant victory the enactment in 2005 of a 210-day “drop dead” period after which a lease of nonresidential real property with respect to which the debtor is the lessee is deemed rejected unless, prior to the expiration of the period, a chapter 11 debtor in possession (“DIP”) or bankruptcy trustee assumes or rejects the lease.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Jones Day, Debtor, Landlord
    Authors:
    Charles M. Oellermann , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Tenth Circuit: fraudulently transferred assets not estate property until recovered
    2013-07-31

    The U.S. Court of Appeals for the Tenth Circuit―in Rajala v. Gardner, 709 F.3d 1031 (10th Cir. 2013)―has joined the Second Circuit and departed from the Fifth Circuit by holding that an allegedly fraudulently transferred asset is not property of the estate until recovered pursuant to section 550 of the Bankruptcy Code and therefore is not covered by the automatic stay. According to the court, its decision “gives Congress’s chosen language its ordinary meaning, and abides by a rule against surplusage.”

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Jones Day, Second Circuit, Fifth Circuit, Tenth Circuit
    Location:
    USA
    Firm:
    Jones Day
    In re Lothian Oil: no tolling of statute of limitations for chapter 11 plan revocation
    2013-03-31

    Confirmation of a chapter 11 plan providing for the reorganization or liquidation of a debtor is the culmination of the chapter 11 process. To promote the fundamental policy of finality in that process, the general rule is that a final confirmation order is inviolable. The absence of certainty that the transactions effectuated under a plan are valid and permanent would undermine chapter 11’s fundamental purpose as a vehicle for rehabilitating ailing enterprises and providing debtors with a fresh start.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Debtor, Fraud, Statute of limitations, Liquidation
    Authors:
    Laura L. Swanson , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    First impressions: shutting down a chapter 11 case due to patent unconfirmability of plan
    2012-10-01

    Before soliciting votes on its bankruptcy plan, a chapter 11 debtor that has filed for bankruptcy typically must obtain court approval of its disclosure statement. As part of the disclosure-statement approval process, interested parties are afforded the opportunity to object. For example, a party may object on the grounds that the disclosure statement lacks sufficient information about the debtor. Sometimes, however, a party objects to the disclosure statement because the chapter 11 plan described by the statement cannot be confirmed.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Debtor, Liquidation, Third Circuit
    Location:
    USA
    Firm:
    Jones Day
    In brief: from the top
    2012-06-12

    On May 14, 2012, the U.S. Supreme Court handed down its first ruling of this Term concerning a bankruptcy issue. In Hall v. U.S., S. Ct.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Ninth Circuit
    Location:
    USA
    Firm:
    Jones Day
    “Universal rule”: trademark licenses not assignable in bankruptcy absent express authorization
    2011-12-06

    Two fundamental goals of chapter 11 of the Bankruptcy Code are rehabilitating a debtor’s business and maximizing the value of the debtor’s estate for the benefit of various stakeholders.

    Filed under:
    USA, Insolvency & Restructuring, Trademarks, Jones Day
    Location:
    USA
    Firm:
    Jones Day
    Senior class gifting is not the end of the story: some recent developments regarding the absolute priority rule and the new value exception
    2011-08-10

    Much attention in the commercial bankruptcy world has been devoted recently to judicial pronouncements concerning whether the practice of senior creditor class “gifting” to junior classes under a chapter 1 1 plan violates the Bankruptcy Code’s “absolute priority rule.” Comparatively little scrutiny, by contrast, has been directed toward significant developments in ongoing controversies in the courts regarding the absolute priority rule outside the realm of senior class gifting— namely, in connection with the “new value” exception to the rule and whether the rule was written out of the Bankr

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bond (finance), Bankruptcy, Shareholder, Debtor, Consent decree, Consumer protection, Interest, Federal Reporter, US Congress, Bank of America, SCOTUS, Seventh Circuit
    Authors:
    Charles M. Oellermann , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day

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