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    Wright v. Owens Corning - debtors remain in the “shadow of Frenville”
    2012-10-01

    In 1984, the Third Circuit was the first court of appeals to examine the Bankruptcy Code’s new definition of “claim” in Avellino & Bienes v. M. Frenville Co. (In re M. Frenville Co.), 744 F.2d 332 (3d Cir. 1984). Focusing on the “right to payment” language in that definition, the court decided that a claim arises when a claimant’s right to payment accrues under applicable nonbankruptcy law. This “accrual” test was widely criticized by other circuit courts as contradicting the broad definition of “claim” envisioned by Congress and the Bankruptcy Code.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Debtor, Due process, Third Circuit
    Authors:
    Paul M. Green
    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
    Authors:
    Scott J. Friedman
    Location:
    USA
    Firm:
    Jones Day
    KERP or KEIP: fireworks continue on keeping key employees at the helm in chapter 11
    2012-10-01

    Changes made to the Bankruptcy Code in 2005 raised the bar considerably for providing “pay to stay” incentives that had been offered routinely to management and other key employees of a chapter 11 debtor, such as a severance or key employee retention plan (“KERP”).

    Filed under:
    USA, Employment & Labor, Insolvency & Restructuring, Litigation, Jones Day, Severance package
    Authors:
    Heather Lennox , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Financial support directions and insolvency: the pensions regulator's view
    2012-09-20

    Summary

    On 26 July 2012, the Pensions Regulator (the 'Regulator') issued a statement on financial support directions (FSDs) with the intention of providing further guidance and comfort with regard to the circumstances in which it will issue an FSD after a company has been placed into administration.

    Filed under:
    USA, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Jones Day, The Pensions Regulator (UK), Lehman Brothers
    Authors:
    John J. Papadakis , David Harding
    Location:
    USA
    Firm:
    Jones Day
    KB Toys: hobgoblins return to haunt bankruptcy claims traders
    2012-08-01

    Participants in the multibillion-dollar market for distressed claims and securities have had ample reason to keep a watchful eye on developments in the bankruptcy courts during the last decade. That vigil appeared to have been over five years ago, after a federal district court ruled in the Enron chapter 11 cases that sold claims are generally not subject to equitable subordination or disallowance on the basis of the seller's misconduct or receipt of a voidable transfer. A ruling recently handed down by a Delaware bankruptcy court, however, has reignited the debate.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Enron, United States bankruptcy court
    Authors:
    Charles M. Oellermann , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Foreign debtor may appoint representative to commence chapter 15 case
    2012-08-01

    As the seventh anniversary of the enactment of chapter 15 of the Bankruptcy Code draws near, the volume of chapter 15 cases commenced in U.S. bankruptcy courts on behalf of foreign debtors has increased rapidly. During that period, there has also (understandably) been a marked uptick in litigation concerning various aspects of the comparatively new legislative regime governing cross-border bankruptcy cases patterned on the Model Law on Cross-Border Insolvency. One such issue was the subject of a ruling recently handed down by a Texas district court. In In re Vitro, S.A.B. de C.V., 470 B.R.

    Filed under:
    USA, Texas, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Debtor, Liquidation, Title 11 of the US Code, United States bankruptcy court
    Authors:
    Pedro A. Jimenez , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Section 506(a): why “wait-and-see” won’t work to value secured-creditor claims
    2012-08-01

    Section 506(a) of the Bankruptcy Code contemplates bifurcation of a debtor's obligation to a secured creditor into secured and unsecured claims, depending on the value of the collateral securing the debt. The term "value," however, is not defined in the Bankruptcy Code, and bankruptcy courts vary in their approaches to the meaning of the term. In In re Heritage Highgate, Inc., 679 F.3d 132 (3d Cir.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Debtor, Unsecured debt, Collateral (finance), Fair market value, Secured creditor, United States bankruptcy court, Third Circuit
    Authors:
    Lauren M. Buonome , Mark G. Douglas
    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
    Construing "substantial contribution" under Section 503(b)(3)(D)
    2012-06-12

    In keeping with the courts’ narrow construction of what constitutes “substantial contribution” in a chapter 11 case, an Ohio bankruptcy court in In re AmFin Financial Corp., 2012 WL 652018 (Bankr. N.D. Ohio Feb. 28, 2012), denied administrative- expense priority to the fees and expenses of the holders of approximately $100 million in senior notes (the “Senior Noteholders”) issued by debtor AmFin Financial Corporation (“AFC”).

    Filed under:
    USA, Ohio, Insolvency & Restructuring, Litigation, Jones Day, Bank holding company, Federal Deposit Insurance Corporation (USA)
    Authors:
    Jennifer L. Seidman
    Location:
    USA
    Firm:
    Jones Day
    RadLAX: credit bidding is cleared for takeoff by U.S. Supreme Court
    2012-06-05

    The U.S. Supreme Court in RadLAX Gateway Hotel, LLC v. Amalgamated Bank, ___ S. Ct. ___, 2012 WL 1912197 (May 29, 2012), held that a debtor may not confirm a chapter 11 "cramdown" plan that provides for the sale of collateral free and clear of existing liens, but does not permit a secured creditor to credit-bid at the sale. The unanimous ruling written by Justice Scalia (with Justice Kennedy recused) resolved a split among the Third, Fifth, and Seventh Circuits.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Limited liability company, Secured creditor
    Authors:
    Kevyn D. Orr , Beth Heifetz , Dan T. Moss
    Location:
    USA
    Firm:
    Jones Day

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