On remand from the Fifth Circuit, in its October 26, 2020, decision in In re Ultra Petroleum Corp.,¹ the US Bankruptcy Court for the Southern District of Texas ruled that (1) make-whole premiums are allowed by the Bankruptcy Code under appropriate circumstances and (2) a solvent debtor must pay pos

This Legal Update provides an outline of the Thai rehabilitation process, by reference to the Thai Airways proceedings currently underway in Bangkok's Central Bankruptcy Court.

Toward the end of this Legal Update, we also touch on how airlines could use US Chapter 11 proceedings, a process understood to have been mooted by Thai Airways.

As discussed in an earlier Legal Update,¹ substantial uncertainty exists over whether companies in bankruptcy are eligible for loans under the Paycheck Protection Program, or PPP, which was established by the CARES Act to support small businesses by offering SBA-guaranteed loans on advantageous terms. Several recent bankruptcy court decisions underscore this uncertainty.

On December 19, 2019, the US Court of Appeals for the Third Circuit held in In re Millennium Lab Holdings II, LLC¹that bankruptcy courts have the constitutional authority, well within the constraints of Stern v.

On May 20, 2019, the Supreme Court decided Mission Product Holdings, Inc. v. Tempnology, LLC, No. 17-1657. In an 8-1 decision, and in a majority opinion authored by Justice Kagan, the Court held that the debtor-licensor’s rejection of a trademark license under Section 365 of the Bankruptcy Code “has the same effect as a breach outside bankruptcy” and, as such, the debtor, through such a rejection, could not rescind the non-debtor’s licensee’s right to continue to use the trademarks; in short, the debtor-licensor’s rejection of the license “cannot revoke the license.” Slip Op. at 16-17.

Introduction

Lamar, Archer & Cofrin, LLP v. Appling, No. 16-1215

The Bankruptcy Code prohibits the discharge of “any debt . . . to the extent obtained by . . . actual fraud, other than a statement respecting the debtor’s . . . financial condition.” 11 U.S.C. § 523(a)(2). Circuit courts have split 3-3 as to whether a statement about a particular asset can qualify as a “statement respecting the debtor’s . . . financial condition.” The Supreme Court has agreed to resolve that split. Mayer Brown LLP represents the respondent.

On January 17, 2017, in a long-awaited decision in Marblegate Asset Management, LLC v. Education Management Finance Corp.,1 the US Court of Appeals for the Second Circuit held that Section 316 of the Trust Indenture Act ("TIA") does not prohibit an out of court restructuring of corporate bonds so long as an indenture's core payment terms are left intact.

Puerto Rico v. Franklin CA Tax-Free Trust, No. 15-233
Acosta-Febo v. Franklin CA Tax-Free Trust, No. 15-255

In In re Bernard L. Madoff Investment Securities LLC (“Madoff”),1 the United States Court of Appeals for the Second Circuit reaffirmed  its broad and literal interpretation of section 546(e) of the Bankruptcy Code, which provides a  safe harbor for transfers made in connection with a securities contract that might otherwise be  attacked as preferences or fraudulent transfers.