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    Two recent highlight pitfalls in creating and implementing key employee incenfive plans for executives in bankruptcy cases
    2012-09-24

    To successfully reorganize in Chapter 11, a bankrupt company may need to retain key employees who understand the company’s business and who can design and implement the company’s reorganization plan. Retaining and properly incentivizing these employees during a Chapter 11 case can be challenging for a number of reasons.

    Filed under:
    USA, New York, Employment & Labor, Insolvency & Restructuring, Litigation, Latham & Watkins LLP, Bankruptcy, United States bankruptcy court
    Authors:
    Mitchell A. Seider
    Location:
    USA
    Firm:
    Latham & Watkins LLP
    Second Circuit decision reassures bankruptcy claim purchasers on enforceability of recourse against sellers
    2012-09-24

    The United States Court of Appeals for the Second Circuit recently vacated a decision by the District Court for the Southern District of New York, which had declined to enforce the contractual allocation of claim impairment risk between a bankruptcy claim buyer and its seller.[1] Relying on the plain language of the documents, the Second Circuit held in Longacre Master Fund, Ltd. v. ATS Automation Tooling Systems Inc. (Longacre)that the debtors’ objection to the claims had triggered the seller’s repurchase obligation.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Bankruptcy, Warranty, Second Circuit
    Authors:
    David J. Karp
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Bankruptcy court determines that holders of soft dollar credits are not customers under SIPA
    2012-09-24

    In a decision described as the first of its kind, the U.S. Bankruptcy Court of the Southern District of New York ruled that claims based on soft dollar credits issued by Lehman Brothers Inc. (LBI) to numerous investment advisers were not entitled to the special protections afforded to “customer claims” under the Securities Investor Protection Act (SIPA).

    Filed under:
    USA, New York, Banking, Capital Markets, Insolvency & Restructuring, Litigation, Ropes & Gray LLP
    Location:
    USA
    Firm:
    Ropes & Gray LLP
    Recent decisions limit scope of protection from successor liability in bankruptcy sale orders
    2012-09-27

    Decisions in two recent cases raise concerns for those interested in buying assets out of bankruptcy.

    Filed under:
    USA, New York, South Carolina, Insolvency & Restructuring, Litigation, Hodgson Russ LLP, Bankruptcy, Debtor, Eleventh Circuit, South Carolina Supreme Court
    Authors:
    James C. Thoman
    Location:
    USA
    Firm:
    Hodgson Russ LLP
    Can default interest and late fees be excluded from secured claims? … Maybe, maybe not
    2012-09-06

    In re 785 Partners LLC, 470 B.R. 126 (S.D.N.Y. Bankr. 2012) –

    Filed under:
    USA, New York, Banking, Insolvency & Restructuring, Litigation, Troutman Pepper, Debtor, Interest, Default (finance), Secured creditor
    Location:
    USA
    Firm:
    Troutman Pepper
    Lease assumption: what if the store has gone “dark”?
    2012-09-04

    Androse Assoc. of Allaire, LLC v. Great Atlantic & Pacific Tea Co. (In re Great Atlantic & Pacific Tea Co.), 472 B.R. 666 (S.D.N.Y. 2012) –

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Real Estate, Troutman Pepper, Debtor, Landlord, Leasehold estate, Intermediate scrutiny
    Location:
    USA
    Firm:
    Troutman Pepper
    Debtors may not be able to keep the KEIP
    2012-08-30

    In two recent decisions,2 the United States Bankruptcy Court for the Southern District of New York denied motions by large chapter 11 debtors to approve executive bonus plans designated as key employee incentive plans ("KEIP"), finding that the proposed KEIPs actually were disguised and impermissible retention or "pay to stay" bonus plans for insiders. These are the first opinions to reject so-called KEIPs following a recent line of cases that have approved KEIPs for insiders.

    Filed under:
    USA, New York, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Lowenstein Sandler LLP, Bond (finance), Debtor, AFL–CIO, United States bankruptcy court
    Authors:
    Paul Kizel , Sharon L. Levine
    Location:
    USA
    Firm:
    Lowenstein Sandler LLP
    SDNY Bankruptcy Court rules that Borders gift card holders are not “known creditors” entitled to actual notice of a bankruptcy bar date
    2012-08-31

    Judge Martin Glenn of the Bankruptcy Court for the Southern District of New York recently ruled that Borders gift card holders did not qualify as “known creditors.” The Court concluded that the gift card holders were entitled only to publication notice rather than actual notice of the bar date for filing bankruptcy claims in Borders’ chapter 11 case.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Unsecured debt, United States bankruptcy court, US District Court for the Southern District of New York
    Authors:
    Casey Servais
    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
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Court denies American Airlines’ motion to reject CBAs; provides roadmap to future rejection
    2012-08-27

    On August, 15, 2012, Bankruptcy Judge Sean H. Lane of the Southern District of New York denied American’s motion to reject its collective bargaining agreement with the Allied Pilots Association (“APA”) on narrow grounds. The Court held that American had not demonstrated that its proposals to eliminate contractual restrictions on pilot furloughs and enter into essentially unlimited codesharing arrangements were necessary to its reorganization.

    Filed under:
    USA, New York, Aviation, Employment & Labor, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, American Airlines
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP

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