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    Cram-Up Chapter 11 Plans: Reinstatement and Indubitable Equivalence
    2020-10-14

    "Cramdown" chapter 11 plans, under which a bankruptcy court confirms a plan over the objection of a class of creditors, are relatively common. Less common are the subset of cramdown plans known as "cram-up" chapter 11 plans. These plans are referred to as such because they typically involve plans of reorganization that are accepted by junior creditors and then "crammed up" to bind objecting senior creditors.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Coronavirus, Title 11 of the US Code
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    FERC v. Bankruptcy Court Turf War Update
    2020-10-14

    On June 22, 2020, the Federal Energy Regulatory Commission ("FERC") issued an order concluding that FERC and the U.S. bankruptcy courts have concurrent jurisdiction to review and address the disposition of natural gas transportation agreements that a debtor seeks to reject under section 365(a) of the Bankruptcy Code (11 U.S.C. §§ 101 et seq.).

    Filed under:
    USA, Energy & Natural Resources, Insolvency & Restructuring, Litigation, Jones Day, FERC, Title 11 of the US Code
    Authors:
    Paul M. Green , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Delaware Bankruptcy Court Rules that Bankruptcy Blocking Right in Debtor's Corporate Charter Violates Federal Public Policy
    2020-10-15

    Courts sometimes disagree over whether provisions in a borrower's organizational documents designed to prevent the borrower from filing for bankruptcy are enforceable as a matter of federal public policy or applicable state law. There has been a handful of court rulings addressing this issue in recent years, with mixed results.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Jones Day, Coronavirus
    Authors:
    Mark A. Cody , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    New Insolvency Processes for Small Australian Businesses
    2020-10-13

    During the better part of 2020, the federal government has injected an unprecedented level of stimulus into the Australian economy in an attempt to mitigate the economic impact of COVID-19. As a result, despite a significant contraction in the Australian economy, roughly half as many Australian companies are entering insolvency processes today compared with the same time last year. As that stimulus is wound back, it seems inevitable that the number of insolvencies will rise.

    Filed under:
    Australia, Insolvency & Restructuring, Jones Day, Coronavirus
    Location:
    Australia
    Firm:
    Jones Day
    "Flip Clause" Payments to Lehman Brothers Noteholders After Termination of Swap Agreement Safe Harbored in Bankruptcy
    2020-10-14

    "Safe harbors" in the Bankruptcy Code designed to insulate non-debtor parties to financial contracts from the consequences that normally ensue when a counterparty files for bankruptcy have been the focus of a considerable amount of scrutiny as part of evolving developments in the pandemic-driven downturn. One of the most recent developments concerning this issue in the courts was the subject of a ruling handed down by the U.S. Court of Appeals for the Second Circuit in connection with the landmark chapter 11 cases of Lehman Brothers Holdings Inc. ("Lehman") and its affiliates.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Creditors' Committee Denied Standing to Bring Derivative Claims on Behalf of LLC Debtor in Bankruptcy
    2020-10-14

    The practice of conferring "derivative standing" on official creditors' committees to assert claims on behalf of a bankruptcy estate in cases where the debtor or a bankruptcy trustee is unwilling or unable to do so is a well-established means of generating value for the estate from litigation recoveries. However, in a series of recent decisions, the Delaware bankruptcy courts have limited the practice in cases where applicable non-bankruptcy state law provides that creditors do not have standing to bring claims on behalf of certain entities.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Title 11 of the US Code
    Authors:
    Dan T. Moss , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Claims Traders Alert: Another Bankruptcy Court Rules that a Traded Claim Can Be Disallowed if the Seller Received a Voidable Transfer
    2020-10-14

    The U.S. Bankruptcy Court for the Southern District of New York recently added some weight to the majority rule on a hot-button issue for claims traders. InIn re Firestar Diamond, Inc., 615 B.R. 161 (Bankr. S.D.N.Y. 2020), the court ruled that a transferred claim can be disallowed under section 502(d) of the Bankruptcy Code even if the entity holding the claim is not the recipient of a voidable transfer. According to the court, claim disallowance under section 502(d) "rests on the claim and not the claim holder."

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Due diligence, Title 11 of the US Code
    Authors:
    Daniel J. Merrett (Dan) , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Extracting Value from Leveraged Businesses: The Case of McLaren and its Bondholders
    2020-10-06

    In recent years, market participants have watched with interest from across the Atlantic as U.S. out-of-court liability management and restructuring transactions moved material assets out of the creditors' collateral pools, to enhance liquidity, to raise additional debt or to extend the maturity of existing debt. Many have wondered when these sort of transactions will reach European shores.

    That moment has now arrived.

    INTRODUCTION

    Filed under:
    United Kingdom, USA, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Jones Day, Private equity, Coronavirus, US Securities and Exchange Commission
    Authors:
    Lee Federman , I. Lewis H. Grimm , Michael C. Schneidereit
    Location:
    United Kingdom, USA
    Firm:
    Jones Day
    Grounded: Virgin Australia Reaffirms the Australian Takeovers Panel’s Narrow Role in Distressed Transactions
    2020-09-16

    In Short

    The Situation: In Australia, the Takeovers Panel ("Panel") is the primary forum for hearing disputes in relation to takeover bids and other corporate control transactions involving public companies. In light of the current COVID-19-led financial distress being experienced by many companies, understanding when the Panel will be the appropriate forum to consider disputes in relation to a company in administration is important. This question arose in the course of the current Virgin Australia Group administration.

    Filed under:
    Australia, Capital Markets, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Jones Day, Private equity, Coronavirus, Australian Securities Exchange
    Authors:
    Chris Ahern , Shannon Finch , Courtney Dixon
    Location:
    Australia
    Firm:
    Jones Day
    Assets may be sold in bankruptcy free and clear of successor liability
    2020-09-04

    Introduction
    Free and Clear Bankruptcy Sales
    Catalina Sea Ranch
    The Bankruptcy Court's Ruling
    Outlook


    Introduction

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

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