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    Insider’s acquisition of claims to create accepting impaired class constitutes impermissible gerrymandering
    2007-08-02

    The strategic importance of classifying claims and interests under a chapter 11 plan is sometimes an invitation for creative machinations designed to muster adequate support for confirmation of the plan. Although the Bankruptcy Code unequivocally states that only “substantially similar” claims or interests can be classified together, it neither defines “substantial similarity” nor requires that all claims or interests fitting the description be classified together.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bond (finance), Shareholder, Debtor, Unsecured debt, Interest, Debt, Credit risk, Liquidation, Voting, Stakeholder (corporate), Substantial similarity, Title 11 of the US Code, Third Circuit
    Location:
    USA
    Firm:
    Jones Day
    European perspective in brief - July/August 2013
    2013-07-31

    Europe has struggled mightily during the last several years to triage a long series of critical blows to the economies of the 28 countries that comprise the European Union, as well as the collective viability of eurozone economies. Here we provide a snapshot of some recent developments regarding insolvency, restructuring, and related issues in the EU. 

    Filed under:
    European Union, Netherlands, United Kingdom, Insolvency & Restructuring, Litigation, Jones Day, Liquidation
    Authors:
    Mark G. Douglas
    Location:
    European Union, Netherlands, United Kingdom
    Firm:
    Jones Day
    The Austrian "Chapter 11": restructuring proceeding with self-administration under the new Austrian Insolvency Code
    2010-12-31

    Austria has implemented radical changes to its insolvency law and introduced a new restructuring proceeding with self-administration (Sanierungsverfahren mit Eigenverwaltung) in its newly adopted Insolvency Code (Insolvenzordnung, or "IO").[1] One of the main features of the new type of insolvency proceeding is that the insolvent company (the "Debtor") largely remains in control of its business, but under the supervision of a restructuring administrator.

    Step-by-Step Guide to the New Austrian Self-Administration Proceeding

    Filed under:
    Austria, Insolvency & Restructuring, Jones Day, Debtor, Unsecured debt, Liquidation
    Authors:
    Dr. Olaf Benning
    Location:
    Austria
    Firm:
    Jones Day
    Application of the absolute priority rule to pre-chapter 11 plan settlements: in search of the meaning of “fair and equitable”
    2007-05-31

    “Give ups” by senior classes of creditors to achieve confirmation of a plan have become an increasingly common feature of the chapter 11 process, as stakeholders strive to avoid disputes that can prolong the bankruptcy case and drain estate assets by driving up administrative costs.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Share (finance), Bankruptcy, Shareholder, Debtor, Unsecured debt, Dividends, Consideration, Liquidation, Secured creditor, Motorola, Second Circuit, United States bankruptcy court, First Circuit, Trustee
    Location:
    USA
    Firm:
    Jones Day
    To rank or not to rank: the UK Supreme Court decision in Lehman/Nortel
    2013-07-25

    In a much-awaited judgment, the UK Supreme Court has decided that the liability of a company in administration or liquidation to contribute to an under-funded pension fund following a Financial Support Direction or a Contribution Notice is a provable debt ranking equally with other unsecured creditors. Crucially, it is not an expense of the administration or liquidation which would cause it to rank ahead of all creditors (except fixed charge holders) and even the administrator's or liquidator's own remuneration.

    Filed under:
    USA, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Jones Day, Debtor, Unsecured debt, Debt, Liability (financial accounting), Liquidation, Defined benefit pension plan, The Pensions Regulator
    Authors:
    Michael Rutstein
    Location:
    USA
    Firm:
    Jones Day
    Death and taxes assured: confirmation of shell corporation’s tax-avoidance Chapter 11 plan denied
    2010-08-10

    Preservation of favorable tax attributes, such as net operating losses that might otherwise be forfeited under applicable nonbankruptcy law, is an important component of a business debtor's chapter 11 strategy. However, if the principal purpose of a chapter 11 plan is to avoid paying taxes, rather than to effect a reorganization or the orderly liquidation of the debtor, the Bankruptcy Code contains a number of tools that can be wielded to thwart confirmation of the plan.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Tax, Jones Day, Bond (finance), Tax exemption, Bankruptcy, Shareholder, Debtor, Taxable income, Beneficiary, Debt, Liquidation, Tax deduction, Title 11 of the US Code, Internal Revenue Code (USA)
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Avoiding forfeiture of estate causes of action triggered by conversion to chapter 7
    2007-05-31

    The ability to borrow money during the course of a bankruptcy case is an important tool available to a chapter 11 debtor-in-possession (“DIP”). Often times, the debtor’s most logical choice for a lender is one with an existing pre-bankruptcy relationship with the debtor. As a condition to making new loans, however, lenders commonly require the debtor to waive its right to pursue avoidance or lender liability actions against the lender based upon pre-bankruptcy events.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Debtor, Waiver, Statute of limitations, Liability (financial accounting), Liquidation, United States bankruptcy court, Tenth Circuit, Trustee
    Location:
    USA
    Firm:
    Jones Day
    Chapter 15 petition date “anchors” COMI analysis
    2013-06-01

    October 17, 2013, will mark the eighth anniversary of the enactment of chapter 15 of the U.S. Bankruptcy Code as part of the comprehensive U.S. bankruptcy-law reforms implemented in 2005. Chapter 15, which governs cross-border bankruptcy and insolvency cases, is patterned after the Model Law on Cross-Border Insolvency (the “Model Law”), a framework of legal principles formulated by the United Nations Commission on International Trade Law (“UNCITRAL”) in 1997 to deal with the rapidly expanding volume of international insolvency cases.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Debtor, Liquidation, UNCITRAL, Second Circuit
    Authors:
    Pedro A. Jimenez , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    No safe harbor in a bankruptcy storm: mutuality “baked into the very definition of setoff”
    2010-08-10

    "Safe harbors" in the Bankruptcy Code designed to insulate nondebtor parties to financial contracts from the consequences that normally ensue when a counterparty files for bankruptcy have been the focus of a considerable amount of scrutiny as part of evolving developments in the Great Recession. One of the most recent developments concerning this issue in the courts was the subject of a ruling handed down by the New York bankruptcy court presiding over the Lehman Brothers chapter 11 cases. In In re Lehman Bros. Holdings, Inc., Judge James M.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Conflict of laws, Debtor, Security (finance), Fraud, Division of property, Swap (finance), Commodity, Debt, Concession (contract), Liquidation, Debtor in possession, US Congress, Lehman Brothers, United States bankruptcy court
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    FLYi, Inc — important application of Owens-Corning standard for substantive consolidation by Delaware bankruptcy court
    2007-05-31

    On March 15, 2007, with Jones Day’s assistance as bankruptcy counsel, FLYi, Inc. (“FLYi”), Independence Air, Inc. (“Independence”) and their affiliated debtors (collectively, the “Debtors”) obtained confirmation of their chapter 11 plan under the “cramdown” provisions of the Bankruptcy Code. The plan, which become effective on March 30, 2007, will distribute approximately $150 million to unsecured creditors. In ruling on confirmation of the plan, the U.S.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Debtor, Unsecured debt, Federal Reporter, Hedge funds, Liquidation, Holding company, United Airlines, United States bankruptcy court, Third Circuit, US District Court for District of Delaware
    Location:
    USA
    Firm:
    Jones Day

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