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    The Bankruptcy Court for the Southern District of New York adopts a strict market valuation approach to pre-petition solvency analysis
    2007-10-25

    In a recent decision, the United States Bankruptcy Court for the Southern District of New York found that the Statutory Committee of Unsecured Creditors (the “Committee”) of Iridium, a failed Motorola spin-off venture, was unable to prove that Iridium was insolvent or had unreasonably small capital during the four-year period prior to commencement of its bankruptcy case.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Public company, Bankruptcy, Debtor, Debt, Legal burden of proof, Cashflow, Valuation (finance), Discounted cash flow, Motorola, United States bankruptcy court, Third Circuit
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    When do rights of first refusal constitute an unenforceable restriction on assignment in bankruptcy?
    2008-02-01

    In the chapter 1 1 cases of Adelphia Communications Corporation and its subsidiaries, Adelphia sought to assume and assign more than 2,000 franchise agreements in connection with the proposed transfer of its cable operations to affiliates of Comcast Corporation and Time Warner Cable. Numerous local franchising authorities objected, arguing, among other things, that they had a right of first refusal under the agreements, and in some cases also under a local ordinance, to purchase the franchise on substantially the same terms and conditions.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Shareholder, Conflict of laws, Debtor, Deed, Joint venture, Legal burden of proof, Debtor in possession, Right of first refusal, Comcast, Time Warner, Title 11 of the US Code, United States bankruptcy court
    Location:
    USA
    Firm:
    Jones Day
    Ohio's Tenth Appellate District addresses priority between mechanics’ liens and mortgages; prejudgment interest on mechanics’ liens
    2008-05-29

    On May 20, 2008 the Tenth Appellate District Court of Appeals issued an opinion in Guernsey Bank v. Milano Sports Enterprises, LLC holding on several issues of priority between mortgages and mechanics’ liens as well as the application of prejudgment interest on mechanics’ liens.

    Filed under:
    USA, Construction, Insolvency & Restructuring, Litigation, Bricker & Eckler LLP, Interest, Limited liability company, Mortgage loan, Foreclosure, Legal burden of proof, Admissible evidence
    Location:
    USA
    Firm:
    Bricker & Eckler LLP
    Bankruptcy Court approves pre-petition automatic stay waiver
    2008-05-22

    In re Bryan Road, LLC, 2008 WL 376773 (Bankr. S.D. Fla. 2008), the Bankruptcy Court for the Southern District of Florida concluded on February 12, 2008, that a borrower could and did waive the protections of the Bankruptcy Code’s automatic stay in a pre-bankruptcy workout agreement with its lender and thus lifted the stay to enable the lender to hold a foreclosure sale.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Seyfarth Shaw LLP, Bankruptcy, Debtor, Waiver, Interest, Consideration, Foreclosure, Legal burden of proof, Condominium, Refinancing, United States bankruptcy court, Third Circuit
    Location:
    USA
    Firm:
    Seyfarth Shaw LLP
    Section 9-506: ‘seriously misleading’
    2008-06-10

    A federal bankruptcy court in Florida has addressed an issue of first impression in its district regarding the degree of error necessary to render a financing statement “seriously misleading” under UCC 9-506.

    Previously, we have discussed the risks involved in failing to name the debtor correctly on a financing statement. See CRaB Alert, February 2007, p. 14, “Calling Borrower ‘Mike’ Leads To Failure To Perfect.”

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Reed Smith LLP, Debtor, Safe harbor (law), Data, Legal burden of proof, Trustee, United States bankruptcy court
    Location:
    USA
    Firm:
    Reed Smith LLP
    Section 304 injunction channels creditor’s guaranty claim to foreign proceeding for adjudication under foreign law, notwithstanding New York choice of law provision
    2008-12-31

    In ABN Amro Bank N.V. v. Parmalat Finanziara S.p.A. (In re Parmalat Finanziara S.p.A.),1 the United States District Court for the Southern District of New York affirmed the Bankruptcy Court’s entry of an injunction pursuant to former section 304 of the Bankruptcy Code (the precursor to current chapter 15, applicable in crossborder insolvency proceedings), which prevented the beneficiary of a guaranty governed by New York law from asserting its guaranty claim against Italian debtor (and guarantor) Parmalat S.p.A. (“Parmalat”) in the United States.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Injunction, Preliminary injunction, Legal burden of proof, Choice of law, Title 11 of the US Code, United States bankruptcy court
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Interracial marriage supports Title VII association claim
    2008-12-10

    In a case of first impression, the United States Court of Appeals for the Second Circuit recently held that antidiscrimination laws may be violated when a white employee is fired for having a black spouse. In Holcomb v. Iona College, 521 F.3d 130 (2d Cir. 2008), the Second Circuit vacated and remanded a federal district court’s grant of summary judgment in favor of Iona College (the “College”), finding that triable issues existed as to whether the College’s decision to terminate its employee, Craig Holcomb, was based at least in part upon a racially discriminatory motive.

    Filed under:
    USA, Employment & Labor, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Discrimination, Federal Reporter, Vacated judgment, Voluntary association, Legal burden of proof, Marriage, Remand (court procedure), Prima facie, Civil Rights Act 1964 (USA), Second Circuit, Eleventh Circuit, Sixth Circuit
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Nondischargeable debt — Lockerby v. Sierra
    2009-01-19

    The U.S. Court of Appeals for the Ninth Circuit has held that a nondischargeable debt for malicious and willful injury must include proof of tortious conduct. An intentional breach of contract does not suffice.  

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Reed Smith LLP, Bankruptcy, Debtor, Breach of contract, Debt, Legal burden of proof, Bankruptcy discharge, US Code, Ninth Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Reed Smith LLP
    Supreme Court lifts temporary stay on Chrysler sale; New Chrysler purchases bulk of Chrysler Assets
    2009-06-11

    Yesterday morning, Chrysler Group LLC (formerly New CarCo Acquisition LLC), backed by Italian automaker Fiat S.p.A., acquired substantially all of Chrysler’s assets. Under the terms of the deal, a union retiree trust will initially own 55% of the new company, Fiat S.p.A. will own 20% and the U.S.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Alston & Bird LLP, Bankruptcy, Limited liability company, Legal burden of proof, Stay of execution, US Federal Government, Chrysler
    Authors:
    Zachary Chapman
    Location:
    USA
    Firm:
    Alston & Bird LLP
    Lehman requests bar date for creditor claims
    2009-06-05

    On May 26, Lehman Brothers Holdings Inc. (LBHI) filed a motion requesting the U.S. Bankruptcy Court for the Southern District of New York to establish August 24 as the deadline for filing proofs of claim against LBHI and its affiliates, and to establish a procedure for such filing, including a required form to be completed online relating to derivatives claims, and a new proof of claim form specific to this case.

    Filed under:
    USA, New York, Derivatives, Insolvency & Restructuring, Litigation, Katten Muchin Rosenman LLP, Surety, Debtor, Legal burden of proof, Lehman Brothers, United States bankruptcy court
    Location:
    USA
    Firm:
    Katten Muchin Rosenman LLP

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