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    U.S. Bankruptcy Court Can Enforce Foreign Restructuring Plan Providing for Cancellation of U.S. Law-Governed Debt
    2022-12-05

    Even before chapter 15 of the Bankruptcy Code was enacted in 2005 to govern cross-border bankruptcy proceedings, the enforceability of a foreign court order approving a restructuring plan that modified or discharged U.S. law-governed debt was well recognized under principles of international comity. The U.S. Bankruptcy Court for the Southern District of New York recently reaffirmed this concept in In re Modern Land (China) Co., Ltd., 641 B.R. 768 (Bankr. S.D.N.Y. 2022).

    Filed under:
    Global, USA, Insolvency & Restructuring, Litigation, Jones Day, Insolvency, United States bankruptcy court
    Authors:
    Corinne Ball , Dan T. Moss , Michael C. Schneidereit , Isel M. Perez , Mark G. Douglas
    Location:
    Global, USA
    Firm:
    Jones Day
    Delaware District Court: Using Contract Rights to Strategic Advantage Not Grounds for Equitable Subordination in Bankruptcy
    2022-12-05

    When lenders use an aggressive strategy to deal with a financially troubled borrower that ultimately files for bankruptcy protection, stakeholders in the case, including chapter 11 debtors, trustees, committees, and even individual creditors or shareholders, frequently pursue causes of action against the lenders in an effort to augment or create recoveries.

    Filed under:
    USA, Delaware, Capital Markets, Company & Commercial, Insolvency & Restructuring, Litigation, Jones Day, US Securities and Exchange Commission, US District Court for District of Delaware
    Authors:
    Oliver S. Zeltner , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Fifth Circuit Embraces Flexible Approach to Countryman Test of Executoriness in Bankruptcies Involving Multiparty Contracts
    2022-12-05

    Whether a contract is "executory" such that it can be assumed, rejected, or assigned in bankruptcy is a question infrequently addressed by the circuit courts of appeals. The U.S. Court of Appeals for the Fifth Circuit provided some rare appellate court-level guidance on the question in Matter of Falcon V, L.L.C., 44 F.4th 348 (5th Cir. 2022). The Fifth Circuit affirmed lower-court rulings determining that a surety contract was not executory because the surety had already posted irrevocable surety bonds and did not owe further performance to the debtors.

    Filed under:
    USA, Company & Commercial, Insolvency & Restructuring, Litigation, Jones Day, National Labor Relations Board (USA), US Congress, Supreme Court of the United States, United States bankruptcy court, Fifth Circuit, Third Circuit
    Authors:
    Dan B. Prieto , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Unimpaired Unsecured Creditors in Solvent-Debtor Chapter 11 Case Entitled to Postpetition Interest, Presumably at Contract or Default Rate
    2022-12-06

    Perhaps given the relative rarity of solvent-debtor cases during the nearly 45 years since the Bankruptcy Code was enacted, a handful of recent high-profile court rulings have addressed whether a solvent chapter 11 debtor is obligated to pay postpetition, pre-effective date interest ("pendency interest") to unsecured creditors to render their claims "unimpaired" under a chapter 11 plan, and if so, at what rate. This question was recently addressed by two federal circuit courts of appeals. In In re PG&E Corp., 46 F.4th 1047 (9th Cir.

    Filed under:
    USA, Company & Commercial, Insolvency & Restructuring, Litigation, Jones Day, Supreme Court of the United States, Ninth Circuit
    Authors:
    Daniel J. Merrett (Dan) , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Digital Assets Defined: Writing Digital Assets into the Bankruptcy Code
    2022-11-14

    As discussed in previous installments of this White Paper series, the Lummis-Gillibrand Responsible Financial Innovation Act (the “Bill”)1 proposes a comprehensive statutory and regulatory framework in an effort to bring stability to the digital asset market. One area of proposed change relates to how digital assets and digital asset exchanges would be treated in bankruptcy. If enacted, the Bill would significantly alter the status quo from a bankruptcy perspective

    OVERVIEW OF DIGITAL ASSETS IN BANKRUPTCY

    Filed under:
    USA, Banking, Derivatives, Insolvency & Restructuring, IT & Data Protection, Litigation, Jones Day, Bitcoin, Cryptocurrency, Digital assets, Commodity Futures Trading Commission (USA), Responsible Financial Innovation Act 2022 (USA)
    Authors:
    Dorothy N. Giobbe , Abradat Kamalpour , Dan T. Moss , Mark W. Rasmussen , Ben Rosenblum , Joshua B. Sterling
    Location:
    USA
    Firm:
    Jones Day
    Fifth Circuit Rules on the "Solvent-Debtor Exception" and Make-Whole Premiums
    2022-10-28

    In Short

    The Situation: Courts have disagreed over whether a make-whole premium triggered by a borrower's bankruptcy filing must be disallowed as unmatured interest. They have also disputed whether the "solvent-debtor exception" requiring the payment of postpetition interest to unimpaired unsecured creditors of a solvent debtor survived the enactment of the Bankruptcy Code. Finally, courts have split on what rate of postpetition interest unimpaired unsecured creditors of a solvent debtor are entitled to receive.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, US Congress, Fifth Circuit
    Authors:
    Heather Lennox , James O. Johnston , Joshua M. Mester , Bruce Bennett , C. Lee Wilson , Nicholas C.E. Walter
    Location:
    USA
    Firm:
    Jones Day
    Texas District Court: Bankruptcy sale break-up fee satisfied both business judgment test and administrative expense standard
    2022-09-29

    BUSINESS RESTRUCTURING REVIEW VOL. 21 • NO. 5 SEPTEMBER–OCTOBER 2022 1 IN THIS ISSUE 1 Texas District Court: Bankruptcy Sale Break-Up Fee Satisfied Both Business Judgment Test and Administrative Expense Standard 2 Lawyer Spotlight: Gregory M.

    Filed under:
    USA, Delaware, Texas, Insolvency & Restructuring, Litigation, Jones Day, Insolvency, Federal Deposit Insurance Corporation (USA), Delaware Supreme Court
    Location:
    USA
    Firm:
    Jones Day
    Fifth Circuit: District Court Improperly Referred Bankruptcy Appeal to Magistrate Judge for Final Determination
    2022-09-28

    Federal district courts, with the consent of the parties, are authorized by statute to refer "civil matter[s]" to magistrate judges for the purpose of conducting all proceedings and entering a judgment in the litigation. In the case of an appeal to a district court from a bankruptcy court, however, this statutory authority arguably conflicts with another statutory provision dictating that appeals from a bankruptcy court order or judgment be heard by a "district court" or a "bankruptcy appellate panel." This apparent conflict was recently addressed by the U.S.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, US Congress, Supreme Court of the United States, Fifth Circuit
    Authors:
    Jane Rue Wittstein , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Divided Ninth Circuit Rules That Unimpaired Unsecured Creditors of a Solvent Debtor May Be Entitled to Post-Petition Interest at Contract or State Default Rates
    2022-09-20

    In Short

    The Situation: Bankruptcy courts have split on what rate of post-petition interest unimpaired creditors of a solvent debtor are entitled to receive. Bankruptcy courts have variously ruled that such creditors were entitled to the contractual rate of interest, interest at the federal judgment rate (about the rate on a one-year Treasury bill) as of the bankruptcy petition date, or an equitable rate. Another possibility is that no interest is payable at all.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Supreme Court of the United States, Ninth Circuit
    Authors:
    Heather Lennox , James O. Johnston , Bruce Bennett , Joshua M. Mester , C. Lee Wilson , Nicholas C.E. Walter
    Location:
    USA
    Firm:
    Jones Day
    Sanctions Risk and Preserving Distressed Assets in the United Kingdom
    2022-09-06

    In Short

    The Situation: As businesses continue to grapple with realising the value of business and assets which are potentially impacted by sanctions related to Russia's war in Ukraine, an English company recently utilised an insolvency process to seek court approval for a proposed divestment.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Trade & Customs, Jones Day, Insolvency, Office of Financial Sanctions Implementation (UK)
    Authors:
    Philip J. Devenish , Giles P. Elliott , David Harding , Vica Irani , Ben Larkin , Nadiya Nychay
    Location:
    United Kingdom
    Firm:
    Jones Day

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