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    The Fifth Circuit Rules That a Make-Whole Premium Is Unmatured Interest Generally Disallowed in Bankruptcy
    2019-08-19

    In In re Ultra Petroleum Corp., 913 F.3d 533 (5th Cir. 2019), the U.S. Court of Appeals for the Fifth Circuit ruled that a "make-whole," or "prepayment," premium owed on unsecured notes issued by a chapter 11 debtor constituted unmatured interest disallowed by section 502(b)(2) of the Bankruptcy Code. The ruling represents a landmark decision on the allowance of such premiums in chapter 11, over which there has been considerable litigation in recent years, including at the circuit court level.

    Enforceability of Make-Whole Premiums in Bankruptcy

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Debtor, Title 11 of the US Code, Fifth Circuit
    Authors:
    Brad B. Erens , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    New UNCITRAL Model Law on the Recognition and Enforcement of Insolvency-Related Judgments
    2019-02-26

    On September 18, 2018, the United Nations Commission on International Trade Law ("UNCITRAL") published its final version of the new Model Law on the Recognition and Enforcement of Insolvency-Related Judgments (the "IRJ Model Law"). The IRJ Model Law creates a framework for the recognition and enforcement of judgments in foreign bankruptcy and insolvency proceedings. It is intended to supplement and complement the 1997 UNCITRAL Model Law on Cross-Border Insolvency (the "CBI Model Law").

    Filed under:
    Global, United Kingdom, Insolvency & Restructuring, Litigation, Jones Day, UNCITRAL
    Authors:
    Mark G. Douglas
    Location:
    Global, United Kingdom
    Firm:
    Jones Day
    Patently Abusive Chapter 11 Cases Filed by Non-Financially Distressed Companies Dismissed for Bad Faith
    2018-06-08

    In the service of the Bankruptcy Code’s goals of giving debtors a "fresh start" and ensuring that estate assets are fairly and equally distributed among similarly situated creditors, the Bankruptcy Code contains an array of advantageous provisions that either do not exist under non-bankruptcy law or are more difficult to deploy. These include, among other things, the ability to reject burdensome contracts, to avoid preferential or fraudulent transfers, and to limit the amount of certain types of creditor claims.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day
    Authors:
    Jane Rue Wittstein , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    To Have and to Hold: Third Circuit Rules That Physical Possession of Goods Is Required Under Section 503(b)(9) of the Bankruptcy Code
    2017-11-22

    Since its enactment as part of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, section 503(b)(9) of the Bankruptcy Code has provided an important safety net for creditors selling goods to financially struggling companies that file for bankruptcy. The provision gives vendors an administrative expense priority claim for the value of goods "received by the debtor" during the 20-day period before the bankruptcy petition date. The U.S.

    Filed under:
    USA, Company & Commercial, Insolvency & Restructuring, Litigation, Jones Day
    Location:
    USA
    Firm:
    Jones Day
    Section 553 of the Bankruptcy Code Preserves Rather Than Creates Setoff Rights
    2017-08-11

    In Feltman v. Noor Staffing Grp., LLC (In re Corp. Res. Servs. Inc.), 564 B.R. 196 (Bankr. S.D.N.Y. 2017), the bankruptcy court considered whether section 553 of the Bankruptcy Code creates a right of setoff when no such right is available under applicable nonbankruptcy law. The court concluded that section 553 does not create an independent federal right of setoff, but merely preserves any such right that exists under applicable nonbankruptcy law.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Jones Day, United States bankruptcy court
    Authors:
    Anna Kordas , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Chapter 15 Inapplicable Unless "Foreign Representative" Seeks Enforcement of Foreign Insolvency Court’s Order
    2017-04-13

    Chapter 15 of the Bankruptcy Code offers an effective mechanism for U.S. courts to provide assistance to non-U.S. courts presiding over the insolvency proceedings of foreign debtors with assets located in the U.S. An important feature of chapter 15 is "comity," the deference that U.S. courts give to the decisions of foreign courts under appropriate circumstances. A ruling recently handed down by the U.S. Court of Appeals for the Second Circuit illustrates that, although comity is an integral part of chapter 15, this chapter is far from the only context in which it applies.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Private Client & Offshore Services, Jones Day, Debtor, Liquidation, Title 11 of the US Code, United States bankruptcy court
    Authors:
    Mark G. Douglas , Timothy Hoffmann
    Location:
    USA
    Firm:
    Jones Day
    In Brief: District Court Denies Lyondell Shareholders' Motion to Reconsider Actual Fraud Imputation Ruling or to Certify Direct Appeal
    2016-12-02

    In Weisfelner v. Hofmann (In re Lyondell Chem. Co.), 2016 BL 241310 (S.D.N.Y. July 27, 2016), the U.S. District Court for the Southern District of New York reversed a 2015 ruling by the bankruptcy court presiding over the chapter 11 case of Lyondell Chemical Company ("Lyondell"). By that ruling, the bankruptcy court dismissed claims asserted by a chapter 11 plan litigation trustee seeking to avoid as actual fraudulent transfers $6.3 billion in payments made to the former stockholders of Lyondell in connection with its 2007 leveraged buyout ("LBO") by Basell AF S.C.A.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Jones Day, US District Court for SDNY
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    U.S. Supreme Court Scuttles Puerto Rico’s 2014 Municipal Debt Restructuring Law
    2016-08-08

    On June 13, 2016, the U.S. Supreme Court upheld lower court rulings declaring unconstitutional a 2014 Puerto Rico law, portions of which mirrored chapter 9 of the Bankruptcy Code, that would have allowed the commonwealth’s public instrumentalities to restructure a significant portion of Puerto Rico’s bond debt (widely reported to be as much as $72 billion). In Commonwealth v. Franklin Cal. Tax-Free Tr., 2016 BL 187308 (U.S.

    Filed under:
    Puerto Rico, USA, Insolvency & Restructuring, Litigation, Public, Jones Day, Federal preemption, Bankruptcy, Debtor, Federal Reporter, Debt, Constitutionality, Title 11 of the US Code, US Congress, SCOTUS, United States bankruptcy court, First Circuit
    Authors:
    Ben Rosenblum , Mark G. Douglas
    Location:
    Puerto Rico, USA
    Firm:
    Jones Day
    Bankruptcy Judge Authorizes Rejection of Gas Gathering Agreements
    2016-03-11

    On Tuesday, March 8, 2016, U.S. Bankruptcy Judge Shelley C. Chapman in New York permitted Sabine Oil & Gas Corporation to reject three gas gathering and handling agreements with Nordheim Eagle Ford Gathering, LLC and HPIP Gonzales Holdings, LLC. All of the agreements are governed by Texas law.

    Filed under:
    USA, Energy & Natural Resources, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy
    Authors:
    Thomas A. Howley , Jeffrey A. Schlegel , Omar Samji , Paul M. Green , Alexandra L. Wilde , Kathrine A. Oldham
    Location:
    USA
    Firm:
    Jones Day
    First impressions: Second Circuit rules that lien is extinguished under chapter 11 plan only if secured creditor participates in case
    2015-10-01

    A hornbook principle of U.S. bankruptcy jurisprudence is that valid liens pass through bankruptcy unaffected. This long-standing principle, however, is at odds with section 1141(c) of the Bankruptcy Code, which provides that, under certain circumstances, "the property dealt with by [a chapter 11] plan is free and clear of all claims and interests of creditors," except as otherwise provided in the plan or the order confirming the plan.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Secured creditor, Second Circuit
    Authors:
    Dan B. Prieto , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day

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