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    Fifth Circuit Doubles Down on Statutory Mootness Approach to Bankruptcy Sales
    2019-02-26

    In Tanguy v. West (In re Davis), 2018 WL 4232063 (5th Cir. Sept. 5, 2018), the U.S. Court of Appeals for the Fifth Circuit revisited the circumstances under which section 363(m) of the Bankruptcy Code moots an appeal of a bankruptcy court’s order approving a sale of assets. The Fifth Circuit reaffirmed its adherence to the majority rule on the issue, ruling that, absent evidence that the purchaser did not acquire the property in good faith, the challengers’ failure to obtain a stay pending appeal moots any appeal of a sale order.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, U.S. Court of Appeals
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    The Year in Bankruptcy: 2018
    2019-02-26

    Rumors of another recession multiplied as the tumultuous second year of the Trump administration came to a close. Highlights of 2018 included a simmering trade war with China; political upheaval after the House of Representatives was retaken by Democrats in the midterm elections; mayhem in financial markets; and, in December, the beginning of the longest government shutdown in U.S. history, triggered by lawmakers’ refusal to provide $5.7 billion in funding for a U.S.-Mexican border wall.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Jones Day
    Authors:
    Charles M. Oellermann , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Fifth Circuit Suggests Claims for Make-Whole Amounts Should Be Disallowed
    2019-01-29

    The Situation On January 17, 2019, the Fifth Circuit strongly suggested that claims for make-whole damages be characterized as "unmatured interest" and that claims for postpetition interest on unsecured debt be limited in bankruptcy proceedings.

    The Result The court's decision appears to be one that favors debtors over lenders.

    Looking Ahead It is unclear if the court's reasoning will be adopted by other jurisdictions and/or in cases with differing factual and legal grounds.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Unsecured debt, Fifth Circuit
    Authors:
    Bruce Bennett , Thomas A. Wilson , Jeffrey B. Ellman (Jeff)
    Location:
    USA
    Firm:
    Jones Day
    Short-Squeeze Risks Loom Again in CDS Markets
    2019-01-11

    In Short:

    The Situation: Fears of a potential short-squeeze in the upcoming Sears CDS auction have kicked off disputes in a variety of venues.

    The Result: One of these disputes caused the fourth-ever convening of an ISDA CDS Determinations Committee external review panel and another made its way before the Sears bankruptcy court.

    Filed under:
    USA, Derivatives, Insolvency & Restructuring, Jones Day, Credit derivative, Credit default swap, International Swaps and Derivatives Association
    Authors:
    George J. Cahill , Locke R. McMurray , Jayant W. Tambe
    Location:
    USA
    Firm:
    Jones Day
    First Impressions: Eleventh Circuit Rules That Equitable Mootness Applies in Chapter 9 Cases
    2018-12-20

    In Bennett v. Jefferson County, Alabama, 899 F.3d 1240 (11th Cir. 2018), a panel of the U.S. Court of Appeals for the Eleventh Circuit ruled as a matter of first impression that the doctrine of equitable mootness applies in chapter 9 cases. According to the Eleventh Circuit panel, "[T]he correct result is to join the Sixth Circuit and the Ninth Circuit B.A.P.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Ninth Circuit, Eleventh Circuit, U.S. Court of Appeals
    Authors:
    Thomas A. Wilson , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    In Brief: Delaware and New York District Courts Affirm Constitutional Authority to Grant Nonconsensual Releases in Chapter 11 Plan
    2018-12-20

    On September 21, 2018, the U.S. District Court for the District of Delaware affirmed a bankruptcy court's ruling that it had the constitutional authority to grant nonconsensual third-party releases in an order confirming the chapter 11 plan of laboratory testing company Millennium Lab Holdings II, LLC ("Millennium"). SeeOpt-Out Lenders v. Millennium Lab Holdings II, LLC (In re Millennium Lab Holdings II, LLC), 2018 WL 4521941 (D. Del. Sept. 21, 2018).

    Filed under:
    USA, Delaware, New York, Arbitration & ADR, Insolvency & Restructuring, Litigation, Jones Day, Subject-matter jurisdiction
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Caveat Emptor—Anti-Assignment Clause Renders Transferred Claim Unenforceable
    2018-10-10

    Amid the explosion of trading in claims against distressed and bankrupt entities, courts in recent years have issued numerous rulings of interest to both buyers and sellers.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Jones Day, Due diligence
    Authors:
    Brad B. Erens , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Fifth Circuit Adopts Flexible Approach to Collateral Valuation in Cramdown Chapter 11 Cases
    2018-10-10

    In In re Houston Regional Sports Network, L.P., 886 F.3d 523 (5th Cir. 2018), the U.S. Court of Appeals for the Fifth Circuit held that bankruptcy courts have flexibility in selecting the date on which to value collateral, "so long as the bankruptcy court takes into account the purpose of the valuation and the proposed use or disposition of the collateral at issue." In so holding, the Fifth Circuit rejected the proposition that a bankruptcy court must value collateral as of either the bankruptcy petition date or the effective date of a cramdown chapter 11 plan.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Jones Day
    Location:
    USA
    Firm:
    Jones Day
    Bankruptcy Court Enforces Nonconsensual Third-Party Releases in Chapter 15 Case
    2018-08-16

    In In re Avanti Commc'ns Grp. PLC, 582 B.R. 603 (Bankr. S.D.N.Y. 2018), Judge Martin Glenn of the U.S. Bankruptcy Court for the Southern District of New York entered an order under chapter 15 of the Bankruptcy Code enforcing a scheme of arrangement sanctioned by a court in England that included nonconsensual third-party releases. Judge Glenn determined that such releases should be recognized and enforced consistent with principles of "comity" and cooperation with foreign courts inherent under chapter 15.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy
    Authors:
    Dan T. Moss , Ryan Sims , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Bankruptcy Court Lacks Power to Substantively Consolidate Nondebtor, Nonprofit Entities With Archdiocese Debtor
    2018-08-16

    In the wake of scandal-driven bankruptcies filed by nearly 20 U.S. Roman Catholic dioceses and religious orders, scrutiny has been increasingly brought to bear on the benefits and burdens that federal bankruptcy laws offer to eleemosynary (nonprofit) corporations. Nonprofits seek bankruptcy protection for a variety of reasons.

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

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