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    Federal appeals court in New York approves Picard's calculation method, disappointing so-called "net winners"
    2011-08-23

    In a decision that was not surprising but nevertheless disappointing, the U.S. Court of Appeals for the Second Circuit recently affirmed the order of the U.S. Bankruptcy Court concluding that the “net equity” calculation for distributions back to Madoff victims should be based on the Net Investment Method, the total of actual deposits and withdrawals, and not the last statement amount listed on the final brokerage account statement. As a result, claw back law suits against the inaptly named “net winners” are sure to continue unabated.

    Background

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, White Collar Crime, Herrick Feinstein LLP, Security (finance), Fraud, Interest, Limited liability company, Liquidation, Market value, Inflation, Brokerage firm, Securities Investor Protection Corporation, Trustee, Second Circuit, United States bankruptcy court
    Authors:
    Howard R. Elisofon , Steven D. Feldman
    Location:
    USA
    Firm:
    Herrick Feinstein LLP
    Second Circuit affirms Madoff trustee's net equity calculation
    2011-08-19

    The United States Court of Appeals for the Second Circuit found in favor of the trustee (the Trustee) presiding over the liquidation of Bernard L. Madoff Investment Securities (BMIS), affirming the Trustee’s calculation of “net equity” in the BMIS liquidation. The Trustee calculates net equity to determine the value of claims submitted by victims of Madoff’s massive fraud.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, White Collar Crime, Katten Muchin Rosenman LLP, Security (finance), Fraud, Limited liability company, Liquidation, Market value, Trustee, Second Circuit
    Location:
    USA
    Firm:
    Katten Muchin Rosenman LLP
    Flamingo court holds joint venturer can't feather claims nest
    2011-08-10

    The Bottom Line:

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Kramer Levin Naftalis & Frankel LLP, Bankruptcy, Surety, Debtor, Limited liability company, Foreclosure, Joint and several liability, US Code, Trustee, Ninth Circuit, United States bankruptcy court
    Authors:
    Anita Wong
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Right of set-off trumps secured interest absent control agreement
    2007-02-19

    An appeals court in Kentucky has issued a reminder to secured lenders of the importance of drawing up control agreements that establish a lender’s interest in a debtor’s assets contained in depository accounts.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Reed Smith LLP, Debtor, Collateral (finance), Accounts receivable, Interest, Limited liability company, Common law, Default (finance), Secured creditor, Uniform Commercial Code (USA)
    Location:
    USA
    Firm:
    Reed Smith LLP
    Second Circuit holds that most important factor in assessing pre-plan settlement distribution under Rule 9019 is whether it complies with the absolute priority rule
    2007-03-27

    On March 7, 2007, the Second Circuit Court of Appeals held that "in the Chapter 11 context, whether a pre-plan settlement's distribution plan complies with the Bankruptcy Code's priority scheme will be the most important factor for a Bankruptcy Court to Consider in approving a settlement under Bankruptcy Rule 9019." In re Iridium Operating LLC, No. 05-2236 (2d Cir. March 7, 2007)

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Sheppard Mullin Richter & Hampton LLP, Bankruptcy, Federal Reporter, Limited liability company, Remand (court procedure), Parent company, Motorola, Second Circuit, United States bankruptcy court, Fifth Circuit
    Location:
    USA
    Firm:
    Sheppard Mullin Richter & Hampton LLP
    Bankruptcy law update
    2007-03-14

    I. In re Iridium Operating LLC

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Bankruptcy, Debtor, Unsecured debt, Limited liability company, Hedge funds, Debt, Refinancing, Secured loan, JPMorgan Chase, Motorola, Second Circuit, United States bankruptcy court, US District Court for the Southern District of New York
    Location:
    USA
    Firm:
    Paul, Weiss, Rifkind, Wharton & Garrison LLP
    Bankruptcy Court Rejects Use of Blocking Director to Prevent Bankruptcy Filing
    2016-04-27

    Does the bankruptcy filing of a limited liability company without the approval of its “Special Member,” the secured lender serving as “blocking director,” render that filing infirm as unauthorized and subject to dismissal?  Not necessarily, held the United States Bankruptcy Court for the Northern District of Illinois in a 

    Filed under:
    USA, Illinois, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, Bankruptcy, Debtor, Fiduciary, Limited liability company, United States bankruptcy court
    Location:
    USA
    Firm:
    Weil Gotshal & Manges LLP
    Bankruptcy Court Chips Away at Bankruptcy Remoteness of Special Purpose Vehicles
    2016-04-18

    A Chicago bankruptcy court declined to dismiss the Chapter 11 case of a “bankruptcy remote” limited liability company even though the debtor failed to obtain the unanimous consent of its members as required by its operating agreement. See In re Lake Mich. Beach Pottawattamie Resort, LLC, Case No. 15bk42427, 2016 Bankr. LEXIS 1107 (Bankr. N.D. Ill. April 5, 2016).

    Filed under:
    USA, Illinois, Insolvency & Restructuring, Litigation, McGuireWoods LLP, Bankruptcy, Debtor, Fiduciary, Limited liability company, United States bankruptcy court
    Authors:
    Richard J. Mason PC , Patricia K. Smoots
    Location:
    USA
    Firm:
    McGuireWoods LLP
    Bankruptcy Appellate Panel Finds Release In Forbearance Agreement Provide Bank With Complete Defense
    2016-03-31

    In MERV Properties, L.L.C. v. Forcht Bancorp., Inc. 2015 WL 5827775, 61 BCD 170 (Bankr. 6th Cir. 2015), the 6th U.S. Circuit Bankruptcy Appellate Panel (BAP) affirmed summary judgment entered by the bankruptcy court for the Eastern District of Kentucky in favor of defendant bank on plaintiff borrower’s fraud and collusion claims.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Sherman Wells Sylvester Stamelman, Surety, Limited liability company, Unconscionability, Bankruptcy Appellate Panel
    Authors:
    Anthony J. Sylvester , Craig L. Steinfeld , Caitlin T. Shadek , Arjun Shah , Anthony C. Valenziano
    Location:
    USA
    Firm:
    Sherman Wells Sylvester Stamelman
    IRS Memo on Bad Boy Guarantees May Recharacterize Non-Recourse Debt as Recourse Liability
    2016-03-17

    On February 5, 2016, the Office of Chief Counsel of the Internal Revenue Service (“IRS”) released a memorandum (a “Memo”) related to the appropriate tax treatment of individuals or entities that invest in real estate limited partnerships and limited liability companies (“LLCs”) with non-recourse financing.1 In essence, the Memo determined that, for the taxpayer in question, (i) the existence of a tradi

    Filed under:
    USA, Banking, Insolvency & Restructuring, Real Estate, Tax, Ropes & Gray LLP, Limited liability company, Debt, Limited partnership, Liability (financial accounting), Internal Revenue Service (USA), Internal Revenue Code (USA)
    Authors:
    Walter R. McCabe III , Chrystal Dyer LaRoche
    Location:
    USA
    Firm:
    Ropes & Gray LLP

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