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    Ninth Circuit: Federal Law Governs Substantive Consolidation, and Supreme Court’s Siegel Ruling Does Not Bar Consolidation of Debtors and Nondebtors
    2017-11-22

    In Clark’s Crystal Springs Ranch, LLC v. Gugino (In re Clark), 692 Fed. Appx. 946, 2017 BL 240043 (9th Cir. July 12, 2017), the U.S. Court of Appeals for the Ninth Circuit ruled that: (i) the remedy of "substantive consolidation" is governed by federal bankruptcy law, not state law; and (ii) because the Bankruptcy Code does not expressly forbid the substantive consolidation of debtors and nondebtors, the U.S. Supreme Court’s decision in Law v. Siegel, 134 S. Ct. 1188 (2014), does not bar bankruptcy courts from ordering the remedy.

    Filed under:
    USA, Company & Commercial, Insolvency & Restructuring, Litigation, Jones Day, Supreme Court of the United States, Ninth Circuit, United States bankruptcy court
    Authors:
    Aaron M. Gober-Sims , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Chapter 11 Plan Not Providing for Payment of Make-Whole Premium Impaired Noteholders
    2017-11-22

    In In re Ultra Petroleum Corp., 2017 BL 335015 (Bankr. S.D. Tex. Sept. 21, 2017), the U.S. Bankruptcy Court for the Southern District of Texas ruled that certain private-placement noteholders were entitled to receive a "make-whole" premium in excess of $200 million under a chapter 11 plan that rendered the noteholders’ claims unimpaired.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, US District Court for Southern District of Texas
    Authors:
    Brad B. Erens
    Location:
    USA
    Firm:
    Jones Day
    Third Circuit Rules That WARN Act’s "Unforeseeable Business Circumstances" Exception Requires That Layoffs Be Probable, Not Possible
    2017-11-22

    In Varela v. AE Liquidation, Inc. (In re AE Liquidation, Inc.), 866 F.3d 515 (3d Cir. 2017), the U.S. Court of Appeals for the Third Circuit became the sixth circuit court of appeals to rule that a "probability standard" applies in determining whether an employer is relieved from giving 60 days’ advance notice to employees of a mass layoff under the Worker Adjustment and Retraining Notification Act of 1988 (the "WARN Act").

    Filed under:
    USA, Employment & Labor, Insolvency & Restructuring, Litigation, Jones Day, Third Circuit
    Authors:
    Charles M. Oellermann , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    To Have and to Hold: Third Circuit Rules That Physical Possession of Goods Is Required Under Section 503(b)(9) of the Bankruptcy Code
    2017-11-22

    Since its enactment as part of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, section 503(b)(9) of the Bankruptcy Code has provided an important safety net for creditors selling goods to financially struggling companies that file for bankruptcy. The provision gives vendors an administrative expense priority claim for the value of goods "received by the debtor" during the 20-day period before the bankruptcy petition date. The U.S.

    Filed under:
    USA, Company & Commercial, Insolvency & Restructuring, Litigation, Jones Day, Uniform Commercial Code (USA)
    Location:
    USA
    Firm:
    Jones Day
    Cross-Border Bankruptcy Update: COMI Migration and Illegitimate COMI Manipulation Distinguished
    2017-11-22

    With the significant increase in cross-border bankruptcy and insolvency filings in the 43 nations or territories that have adopted the UNCITRAL Model Law on Cross-Border Insolvency (the "Model Law"), including the U.S., the incidence of "COMI migration"—the shifting of a debtor’s "center of main interests" ("COMI") to a country with more favorable insolvency laws—has also increased. As demonstrated by a ruling handed down by the U.S.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, UNCITRAL, US Securities and Exchange Commission, United States bankruptcy court, US District Court for the Southern District of New York
    Authors:
    Dan T. Moss , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Second Circuit Rules on Chapter 11 Cram-Down, Make-Whole, and Subordination Issues
    2017-10-25

    In Short

    The Situation: In In re MPM Silicones, L.L.C., secured noteholders argued that replacement notes distributed to them under a cram-down chapter 11 plan should bear market-rate interest rather than the lower formula rate proposed in the plan and that they were entitled to a make-whole premium.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Jones Day, Supreme Court of the United States, Second Circuit, United States bankruptcy court, Sixth Circuit
    Authors:
    Bruce Bennett , Brad B. Erens
    Location:
    USA
    Firm:
    Jones Day
    Second Circuit Issues Key Cramdown Interest Rate Ruling
    2017-10-27

    In Momentive Performance Materials Inc. v. BOKF, NA (In re MPM Silicones, L.L.C.), 2017 BL 376794 (2d Cir. Oct. 27, 2017) ("Momentive"), the U.S. Court of Appeals for the Second Circuit, in a long-anticipated decision, affirmed a number of lower court rulings on hot-button bankruptcy issues, including allowance (or, in this case, denial) of a claim for a "make-whole" premium and contractual subordination of junior notes.

    Filed under:
    USA, Company & Commercial, Insolvency & Restructuring, Litigation, Jones Day, Second Circuit
    Location:
    USA
    Firm:
    Jones Day
    Bankruptcy Court Rules "Make-Whole" Provision Creates Enforceable Liquidated Damages
    2017-10-12

    In Short

    The Situation: After a ruling in In re Ultra Petroleum Corp. by the U.S. Bankruptcy Court for the Southern District of Texas, certain private-placement noteholders are entitled to a "make-whole" premium in excess of $200 million, under a chapter 11 plan that had rendered the noteholders' claims unimpaired.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Liquidated damages
    Authors:
    Brad B. Erens
    Location:
    USA
    Firm:
    Jones Day
    Yet Another Ruling Deepens the Divide on Whether the Bankruptcy Code’s Avoidance Provisions Apply Extraterritorially
    2017-10-02

    The ability to avoid fraudulent or preferential transfers is a fundamental part of U.S. bankruptcy law. However, when a transfer by a U.S. entity takes place outside the U.S. to a non-U.S. transferee—as is increasingly common in the global economy—courts disagree as to whether the Bankruptcy Code’s avoidance provisions apply extraterritorially to avoid the transfer and recover the transferred assets. A pair of bankruptcy court rulings handed down in 2017 widened a rift among the courts on this issue.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Equal Employment Opportunity Commission (USA)
    Authors:
    Charles M. Oellermann , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Focus on Health Care Provider Bankruptcies
    2017-10-02

    The next few years are expected to see a significant increase in the volume of bankruptcy cases filed by health care providers. Thus far in 2017, the number of bankruptcies in health care-related sectors, including hospitals, physicians’ offices and clinics, specialty outpatient facilities, assisted-living facilities, and other providers, has been surpassed only by bankruptcies in the oil and gas, finance, and retail industries.

    Filed under:
    USA, Healthcare & Life Sciences, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Medical record, Retail, Debtor, Limited liability company, Trustee, US District Court for Southern District of Florida
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day

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