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    The end of Frenville: relief or more confusion?
    2010-08-10

    As part of the overhaul of bankruptcy laws in 1978, Congress for the first time included the definition of "claim" as part of the Bankruptcy Code. A few years later, in Avellino & Bienes v. M. Frenville Co. (In re M. Frenville Co.), the Third Circuit became the first court of appeals to examine the scope of this new definition in the context of the automatic stay.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Conflict of laws, Retail, Debtor, Injunction, Liquidation, Bankruptcy discharge, Title 11 of the US Code, US Congress, Third Circuit
    Authors:
    Paul M. Green
    Location:
    USA
    Firm:
    Jones Day
    Focus on feasibility
    2007-05-31

    One of the most significant changes to chapter 11 of the Bankruptcy Code in the 2005 amendments was the absolute limit placed on extensions of the exclusivity periods. Courts no longer have the discretion to extend a debtor’s exclusive periods to file and solicit a plan beyond 18 months and 20 months, respectively, after the petition date. Although the legislative history contains no explanation for why this change was made, Congress presumably intended to accelerate the reorganization process or facilitate the prospects for competing plans in large, complex cases.

    Filed under:
    USA, Insolvency & Restructuring, Jones Day, Debtor, Hedge funds, Legal burden of proof, Liquidation, Investment funds, SCOTUS, Ninth Circuit
    Location:
    USA
    Firm:
    Jones Day
    In re Lothian Oil: no tolling of statute of limitations for chapter 11 plan revocation
    2013-03-31

    Confirmation of a chapter 11 plan providing for the reorganization or liquidation of a debtor is the culmination of the chapter 11 process. To promote the fundamental policy of finality in that process, the general rule is that a final confirmation order is inviolable. The absence of certainty that the transactions effectuated under a plan are valid and permanent would undermine chapter 11’s fundamental purpose as a vehicle for rehabilitating ailing enterprises and providing debtors with a fresh start.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Debtor, Fraud, Statute of limitations, Liquidation
    Authors:
    Laura L. Swanson , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    You go bust, your assets are mine! The anti-deprivation rule considered
    2010-05-31

    There is something positively Dickensian when looking at the anti-deprivation rule (the "rule") and images come up of scribes working in dark and dismal rooms scratching their quills by dim candle light. Indeed, the rule dates back to the nineteenth century and many lawyers would be hard-pressed to explain it even if they are able to grasp the contradictions and fine distinctions thrown up by the old cases. In essence, the rule provides that a contractual provision is void if it provides for the transfer of an asset from the owner to a third party upon the insolvency of the owner.

    Filed under:
    United Kingdom, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Jones Day, Share (finance), Royalty payment, Bankruptcy, Landlord, Leasehold estate, Joint venture, Liquidation, Fair market value, Common law, Articles of association, Liquidator (law), Lehman Brothers
    Authors:
    Michael Rutstein , Victoria Ferguson
    Location:
    United Kingdom
    Firm:
    Jones Day
    Choice of bankruptcy venue: sound strategy or forum shopping?
    2007-04-01

    One of the most significant considerations in a prospective chapter 11 debtor’s strategic pre-bankruptcy planning is the most favorable venue for the bankruptcy filing.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Debtor, Consumer protection, Liquidation, Collective bargaining, Forum shopping, Title 11 of the US Code, United States bankruptcy court
    Location:
    USA
    Firm:
    Jones Day
    First impressions: shutting down a chapter 11 case due to patent unconfirmability of plan
    2012-10-01

    Before soliciting votes on its bankruptcy plan, a chapter 11 debtor that has filed for bankruptcy typically must obtain court approval of its disclosure statement. As part of the disclosure-statement approval process, interested parties are afforded the opportunity to object. For example, a party may object on the grounds that the disclosure statement lacks sufficient information about the debtor. Sometimes, however, a party objects to the disclosure statement because the chapter 11 plan described by the statement cannot be confirmed.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Debtor, Liquidation, Third Circuit
    Location:
    USA
    Firm:
    Jones Day
    Legal considerations for managing restructurings in China
    2009-05-11

    Many multinational corporations ("MNCs") are either restructuring or actively considering restructuring their China operations, given the current economic conditions and forecasts. Restructuring efforts often include consolidating legal entities, business units, and operations; closing down operations and factories; and workforce reductions. Implementing such restructuring efforts often raises complicated legal issues, many of which require careful analysis in light of recent legislation and policy considerations.

    Consolidating Operations

    Filed under:
    China, Insolvency & Restructuring, Jones Day, Legal personality, Customs, Accounts receivable, Liability (financial accounting), Liquidation, Transfer pricing, Consolidation (business)
    Location:
    China
    Firm:
    Jones Day
    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, Title 11 of the US Code, US Congress, United States bankruptcy court, Trustee
    Location:
    USA
    Firm:
    Jones Day
    Foreign debtor may appoint representative to commence chapter 15 case
    2012-08-01

    As the seventh anniversary of the enactment of chapter 15 of the Bankruptcy Code draws near, the volume of chapter 15 cases commenced in U.S. bankruptcy courts on behalf of foreign debtors has increased rapidly. During that period, there has also (understandably) been a marked uptick in litigation concerning various aspects of the comparatively new legislative regime governing cross-border bankruptcy cases patterned on the Model Law on Cross-Border Insolvency. One such issue was the subject of a ruling recently handed down by a Texas district court. In In re Vitro, S.A.B. de C.V., 470 B.R.

    Filed under:
    USA, Texas, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Debtor, Liquidation, Title 11 of the US Code, United States bankruptcy court
    Authors:
    Pedro A. Jimenez , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Chapter 15 in practice: bankruptcy court lacks jurisdiction to adjudicate avoidance actions in chapter 15 under U.S. or foreign law
    2009-04-02

    April 17, 2009, will mark the three-and-one-half-year anniversary of the effective date of chapter 15 of the Bankruptcy Code, which was enacted as part of the comprehensive bankruptcy reforms implemented under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005.

    Filed under:
    USA, Mississippi, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Debtor, Consumer protection, Injunction, Interest, Liquidation, Subject-matter jurisdiction, Title 11 of the US Code, United States bankruptcy court
    Authors:
    Mark G. Douglas , Pedro A. Jimenez
    Location:
    USA
    Firm:
    Jones Day

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