LEXISNEXIS A.S. PRATT

APRIL/MAY 2018

EDITOR'S NOTE: COMPARATIVE LAW Steven A. Meyerowitz

WHAT'S PAST IS PROLOGUE: THE EUROPEAN MOVEMENT TOWARD HARMONIZED PRE-INSOLVENCY BUSINESS RESTRUCTURINGS CONTRASTED WITH THE AMERICAN PREFERENCE FOR GOING-CONCERN ASSET SALES Harry Rajak, Patrick E. Mears, and Edward O. Mears

LANDMARK COURT OPINION INCREASES LIABILITY RISK PROFILE FOR GERMAN PORTFOLIO COMPANY MANAGEMENT Bernd Meyer-Lwy and Carl Pickerill

SPLIT FIRST CIRCUIT PREVENTS NON-DEBTOR LICENSEE FROM USING REJECTED TRADEMARK LICENSE Michael L. Cook

In a unanimous decision in Merit Mgmt. Grp., LP v. FTI Consulting, Inc., the U.S. Supreme Court addressed the scope of a Bankruptcy Code exception to the “avoiding powers” of a bankruptcy trustee or Chapter 11 debtor-in-possession that permit invalidation (i.e., avoidance and clawback) of a limited category of transfers of property by a debtor or of a debtor’s interest in property.

In U.S. Bank N.A. v. Village at Lakeridge, LLC, the U.S. Supreme Court issued an important decision on standards of appellate review, holding that appellate courts should review a bankruptcy court’s determination of whether a particular creditor is a “nonstatutory insider” for purposes of the Bankruptcy Code under the highly deferential “clearly erroneous” standard of review.

In BFP v. Resolution Tr. Corp., 511 U.S. 531 (1994), the Supreme Court held that a mortgage foreclosure sale conducted in accordance with state law was shielded from avoidance under the Bankruptcy Code’s fraudulent conveyance provision, 11 U.S.C. § 548. In the wake of BFP, the federal courts have wrestled with the question of whether tax sales—distinct from foreclosures, but similar in concept—may be avoided in bankruptcy.

Nighthawk Energy plc, along with its wholly owned subsidiary Nighthawk Royalties LLC, has filed a petition for relief under Chapter 11 in the Bankruptcy Court for the District of Delaware (Lead Case No. 18-10990). Nighthawk, an independent oil & gas company operating in the DJ Basin in Colorado, has not yet filed First Day Motions.

Introduction

The Bottom Line

© Copyright 2018 Jenner & Block LLP. 353 North Clark Street Chicago, IL 60654-3456. Jenner & Block is an Illinois Limited Liability Partnership including professional corporations. Attorney Advertising. Prior results do not guarantee a similar outcome. Recent Developments in Bankruptcy Law, April 2018 (Covering cases reported through 581 B.R.

Garrison Keillor once said, “Sometimes I look reality straight in the eye and deny it.”[1] Being that the case arose in Minnesota, perhaps Circuit Judge Michael Melloy channeled Keillor, one of that state’s great humorists, when he authored the opinion in The Official Commit

The District of Columbia Court of Appeals recently reversed a lower court’s decision granting summary judgment to a condominium association and held that the association’s foreclosure of a “super-priority” condominium lien may not have extinguished an otherwise first-priority mortgage on the property. SeeU.S. Bank Nat’l Ass’n v. Green Parks, LLC, No. 16-cv-842 (D.C. Mar. 13, 2018). In the case, the borrower obtained a loan to purchase a condominium.