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    Creditor’s pre-petition release of debtor - guarantor voided by Bankruptcy Appellate Panel
    2008-03-27

    In In re SNTL Corp.,1 the United States Bankruptcy Appellate Panel of the Ninth Circuit recently decided that if a creditor is required in another proceeding to disgorge as a preference a payment that had been guaranteed by the debtor, the debtor’s liability as guarantor may be revived, provided that the agreement releasing the debtor from its guarantee obligation to the creditor explicitly permits such revival.

    Background

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Surety, Debtor, Unsecured debt, Ninth Circuit, United States bankruptcy court, Bankruptcy Appellate Panel
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Door remains open for key employee incentive programs
    2007-09-21

    Debtors, creditors, purchasers and lenders continue to carefully monitor employee incentive programs after the 2005 changes to Bankruptcy Code brought on by BAPCA. Although many feared the changes to section 503(c) would eliminate an important tool for creating incentives for employees, courts have consistently approved reasonable and well-thought-out incentive programs.

    Factual Background

    Filed under:
    USA, Employment & Labor, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Debtor, Market liquidity, Debt, Good faith, Business judgement rule, Severance package, Delaware Supreme Court, Chief executive officer
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Losing Your Marbles: A Sensible Interpretation of Section 316 of the Trust Indenture Act
    2017-01-27

    The U.S. Court of Appeals for the Second Circuit issued its ruling in Marblegate Asset Management, LLC v. Education Management Corp. that provided much needed clarity to creditors and issuers involved in out-of-court restructurings affecting noteholders. The issue for the court was whether Education Management Corp. (“EDMC”) violated the Trust Indenture Act (the “TIA”) when it implemented a restructuring that impaired the rights of one of its unsecured noteholders, Marblegate Asset Management, LLC (the “Noteholder”).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Unsecured debt, Asset management, Secured loan, Second Circuit
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Court rules that Detroit is eligible for Chapter 9 and that pensions may be impaired in Chapter 9
    2013-12-06

    On December 5, 2013, the U.S. Bankruptcy Court for the Eastern District of Michigan released its 143 page decision upholding the City of Detroit’s eligibility to be a debtor under chapter 9 of the United States Bankruptcy Code.  In re City of Detroit, Michigan, Case No. 13-53846 (Bankr. E.D. Mich. Dec.

    Filed under:
    USA, Michigan, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Constitutionality, Title 11 of the US Code, US District Court for Eastern District of Michigan
    Authors:
    Ingrid Bagby , Thomas Curtin , Mark C. Ellenberg , Howard R. Hawkins Jr. , Ivan Loncar , Lary Stromfeld
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    California dreaming? CalPERS seeks payment in full of all pension obligations during pendency of San Bernardino’s Chapter 9 case
    2012-12-10

    California has seen a string of three Chapter 9 filings this year and faces a long line of distressed municipalities.  Given this backdrop, the California Public Employees’ Retirement System (“CalPERS”) figures to play a prominent role in the resolution of many of these situations (in or out of bankruptcy).  Thus, the bond‑buying public will scrutinize closely any steps that CalPERS takes to protect its claims in the Bankruptcy Court.

    Filed under:
    USA, California, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Public, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Title 11 of the US Code, CalPERS
    Authors:
    Thomas Curtin
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    In re Ashapura: Southern District of New York holds that proceeding under repealed foreign law is entitled to Chapter 15 recognition
    2012-09-04

    On June 28, 2012, Judge Shira A. Scheindlin of the United States District Court for the Southern District of New York affirmed the order of the United States Bankruptcy Court for the Southern District of New York granting Ahapura Minechem Ltd.’s petition for recognition of its Indian insolvency proceeding as a foreign main proceeding under chapter 15 of the Bankruptcy Code. Armada v. Shah (In re Ashapura Minechem Ltd.), 2012 WL 2478467 (S.D.N.Y. June 28, 2012).

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Arbitration award, Title 11 of the US Code, United States bankruptcy court
    Authors:
    Michael A. Stevens
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Eleventh Circuit upholds a bankruptcy court’s exclusive jurisdiction to enforce its own Chapter 11 discharge injunctions
    2012-06-13

    On May 30, 2012, the United States Court of Appeals for the Eleventh Circuit held that a bankruptcy court in one federal district lacks jurisdiction to determine whether a debt was discharged under a chapter 11 plan confirmation order issued by a bankruptcy court in another federal district.  Alderwoods Group, Inc. v. Garcia, 1:10-cv-20509-KMM, 2012 U.S. App. LEXIS 10891 (11th Cir. May 30, 2012).  The decision makes it clear that a debtor must seek enforcement of its discharge order in the same federal court that granted the discharge in the first place.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Debtor, Injunction, Class action, Exclusive jurisdiction, Bankruptcy discharge, United States bankruptcy court, Eleventh Circuit
    Authors:
    Alicia B. Davis , Casey Servais
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Bankruptcy Court for Southern District of New York prohibits triangular setoff provided for in safe harbored contract
    2011-10-12

    On October 4, 2011, the United States Bankruptcy Court for the Southern District of New York ruled that a contractual right of a triangular (non-mutual) setoff was unenforceable in bankruptcy, even though the contract was safe harbored. In re Lehman Brothers, Inc., No. 08-01420 (JMP), 2011 WL 4553015 (Bankr. S.D.N.Y. Oct. 4, 2011).

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Collateral (finance), Safe harbor (law), Swap (finance), Debt, Concession (contract), Standing (law), Liquidation, Common law, Title 11 of the US Code, UBS, Lehman Brothers, Delaware Supreme Court, United States bankruptcy court, US District Court for SDNY, Trustee
    Authors:
    Mark C. Ellenberg , Peter M. Friedman
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Philly news: Third Circuit upholds bidding procedures denying lenders opportunity to credit bid
    2010-06-15

    The Third Circuit Court of Appeals recently affirmed the District Court’s ruling in In re Philadelphia Newspapers, LLC.1 The Court allowed Philadelphia Newspapers, LLC to require all-cash bids for the asset sale under their proposed plan. This precluded secured creditors from credit bidding, as long as the plan provided those creditors with the “indubitable equivalent” of the value of their claims.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Credit (finance), Debtor, Collateral (finance), Interest, Limited liability company, Secured creditor, Secured loan, United States bankruptcy court, Third Circuit
    Authors:
    Leslie W. Chervokas
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Chrysler and GM: courts extend law on sales, recharacterization
    2009-09-30

    Earlier this year, Courts from the Bankruptcy Courts for the Southern District of New York to the United States Supreme Court issued a number of rulings approving the asset sales by Chrysler and General Motors. Although popular and industry media have been replete with stories regarding the facts of these cases, this article provides an in-depth analysis of the Courts’ rulings on several key issues of interest to debtors and creditors in future bankruptcies.

    Summary of Key Rulings

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Liquidation, Bridge loan, US Department of the Treasury, United Automobile Workers, General Motors, Chrysler, SCOTUS, Second Circuit, United States bankruptcy court
    Authors:
    Peter M. Friedman
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP

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