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    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
    Second Circuit rules against net winners in Madoff “net equity” dispute
    2011-08-18

    In a decision likely to affect thousands of Madoff investors, the Second Circuit Court of Appeals on Aug. 16, 2011 unanimously upheld the method used by the liquidating trustee for Bernard L.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, White Collar Crime, Schulte Roth & Zabel LLP, Security (finance), Fraud, Standard of review, Liquidation, Broker-dealer, Investment funds, Market value, Pro rata, Securities Investor Protection Corporation, Trustee, Second Circuit, United States bankruptcy court
    Authors:
    Marcy Ressler Harris , William D. Zabel , Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Fruehauf opinion illustrates that despite a preference to allow amendment of pleadings, courts won't always allow amendment
    2011-08-10

    Summary

    In a 23 page decision signed July 15, 2011, Judge Walsh of the Delaware Bankruptcy Court denied a motion to allow a plaintiff to file an amended complaint, holding that the amended complaint was too deficient to survive a motion to dismiss and therefore would not be allowed. Judge Walsh’s opinion is available here (the “Opinion”).

    Background

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Fox Rothschild LLP, Bankruptcy, Fraud, Statute of limitations, Federal Reporter, Liquidation, Constitutional amendment, Federal Rules of Civil Procedure (USA), Trustee, United States bankruptcy court, Third Circuit
    Authors:
    L. John Bird
    Location:
    USA
    Firm:
    Fox Rothschild LLP
    Bankruptcy claims trading orders: who is watching?
    2011-08-11

    CURRENTLY, NEGOTIATION and documentation of claims trades remain largely unregulated, with only limited oversight from bankruptcy courts and the Securities and Exchange Commission. Generally, the bankruptcy court’s, or the claims agent’s, involvement in claims trading is ministerial, i.e., maintaining the claims register and recording transfers if the form complies with the rule. Only if there is an objection to a claims transfer does the bankruptcy court become involved in the substance of a transfer.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Regulatory compliance, Bankruptcy, Debtor, Security (finance), Waiver, Consideration, Debt, Liquidation, US Securities and Exchange Commission, Internal Revenue Code (USA), United States bankruptcy court
    Authors:
    Lawrence V. Gelber , Adam C. Harris , David J. Karp , Neil S. Begley
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Creditors beware: in Argentine bankruptcies, employees now call the shots
    2011-08-15

    Argentine debtors are now subject to employee take-over under the nation’s recently amended bankruptcy code, signed into law by the nation’s President, Cristina Fernandez de Kirchner. Argentine Bankruptcy Law 24,522 as amended by Law No. 26,684,1 allows employees of a bankrupt company who have established a union or cooperative to (i) suspend the enforcement of claims that are filed by creditors for up to 2 years and (ii) ask the judge to appoint the cooperative as the successor to the debtor’s management.

    Filed under:
    USA, Employment & Labor, Insolvency & Restructuring, Litigation, Bracewell LLP, Bankruptcy, Credit (finance), Debtor, Foreclosure, Liability (financial accounting), Liquidation
    Location:
    USA
    Firm:
    Bracewell LLP
    Bankruptcy asset sale not so “free and clear” after all
    2011-08-10

    The ability to sell an asset in bankruptcy free and clear of liens and any other competing “interest” is a well-recognized tool available to a trustee or chapter 11 debtor in possession (“DIP”). Whether the category of “interests” encompassed by that power extends to potential successor liability claims, however, has been the subject of considerable debate in the courts. A New York bankruptcy court recently addressed this controversial issue in Olson v. Frederico (In re Grumman Olson Indus., Inc.), 445 B.R. 243(Bankr. S.D.N.Y. 2011).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Contractual term, Environmental remediation, Bankruptcy, Debtor, Statutory interpretation, Interest, Liability (financial accounting), Liquidation, Good faith, Debtor in possession, In rem jurisdiction, Bankruptcy discharge, Title 11 of the US Code, Trustee, United States bankruptcy court, US District Court for the Southern District of New York
    Authors:
    Lauren M. Buonome
    Location:
    USA
    Firm:
    Jones Day
    DCF analysis: a “commercially reasonable determinant” of value for liquidation of mortgage loans in repo transaction
    2011-08-10

    In a case of first impression, the Third Circuit Court of Appeals in In re American Home Mortg. Holdings, Inc., 637 F.3d 246 (3d Cir. 2011), held that, for purposes of section 562 of the Bankruptcy Code, a discounted cash flow analysis was a “commercially reasonable determinant” of value for the liquidation of mortgage loans in a repurchase transaction.  

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Debtor, Security (finance), Interest, Mortgage loan, Liquidation, Cashflow, Mortgage-backed security, Discounted cash flow, Title 11 of the US Code, Third Circuit
    Authors:
    Ben Rosenblum
    Location:
    USA
    Firm:
    Jones Day
    Vietnam legal update: new Law on Bankruptcy to take effect in January
    2014-12-22

    In brief: Vietnam's new Law on Bankruptcy will take effect from 1 January 2015, bringing in a number of changes, including a new definition of 'bankruptcy'. Partner Robert Fish (view CV)and Junior Associates Giang Quang Nguyen and Linh Nguyen look at the most significant features of the new law and note what will differ from the current regime.

    Filed under:
    Vietnam, Insolvency & Restructuring, Litigation, Allens, Bankruptcy, Liquidation
    Authors:
    Robert Fish
    Location:
    Vietnam
    Firm:
    Allens
    IBNR value in US insolvencies
    2007-02-09

    The State of New Jersey Appellate Court ruled that the final dividend plan (“FDP”) proposed by the liquidator for Integrity Insurance Company (“Integrity”) was invalid in part because incurred but not reported (“IBNR”) claims were improperly included in the valuation of claims by its policyholders. As background, Integrity wrote umbrella and excess liability insurance policies which covered long-tail liabilities prone to significant IBNR. These underlying policies were reinsured by various companies. In 1987, Integrity was placed into liquidation with over 26,000 policyholder claims filed.

    Filed under:
    USA, Insolvency & Restructuring, Insurance, Litigation, Mills & Reeve LLP, Dividends, Reinsurance, Liquidation, Liability insurance, Liquidator (law), Valuation (finance)
    Location:
    USA
    Firm:
    Mills & Reeve LLP
    Assessing the impact of the new Chapter 11 exclusivity deadline
    2007-01-29

    A debtor’s exclusive right to formulate and solicit acceptances for a plan of reorganization during the initial stages of a chapter 11 case is one of the most important benefits conferred under the Bankruptcy Code as a means of facilitating the successful restructuring of an ailing enterprise. By giving a chapter 11 debtor-in-possession time to devise a solution to balance sheet and operational problems without being burdened by the competing agendas of other stakeholders in the bankruptcy case, exclusivity levels the playing field, at least temporarily.

    Filed under:
    USA, Insolvency & Restructuring, Jones Day, Bankruptcy, Shareholder, Debtor, Interest, Debt, Standing (law), Liquidation, Good faith, Balance sheet, Exclusive right, US Congress, Title 11 of the US Code, Trustee, United States bankruptcy court
    Location:
    USA
    Firm:
    Jones Day

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