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    Substantive consolidation and nondebtor entities: the fight continues
    2011-06-01

    Although it has been described as an “extraordinary remedy,” the ability of a bankruptcy court to order the substantive consolidation of related debtor-entities in bankruptcy (if circumstances so dictate) is relatively uncontroversial, as an appropriate exercise of a bankruptcy court’s broad (albeit nonstatutory) equitable powers. By contrast, considerable controversy surrounds the far less common practice of ordering consolidation of a debtor in bankruptcy with a nondebtor.

    Filed under:
    USA, Florida, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Debtor, Due process, Liability (financial accounting), Title 11 of the US Code, Second Circuit, Ninth Circuit, United States bankruptcy court, Eleventh Circuit, Third Circuit
    Location:
    USA
    Firm:
    Jones Day
    From the top: recent U.S. Supreme Court ruling
    2011-04-01

    The U.S. Supreme Court’s October 2010 Term (which extends from October 2010 to October 2011, although the Court hears argument only until June or July) officially got underway on October 4, three days after Elena Kagan was formally sworn in as the Court’s 112th Justice and one of three female Justices sitting on the Court.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Costs in English law, Debtor, Federal Reporter, Ex post facto law, Debt, Tax deduction, Dissenting opinion, Majority opinion, Article III US Constitution, Internal Revenue Service (USA), US Congress, Westlaw, SCOTUS, Ninth Circuit
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    New U.S. Supreme Court rulings
    2010-08-11

    When a bankruptcy court calculates the "projected disposable income" in a repayment plan proposed by an above-median-income chapter 13 debtor, the court may "account for changes in the debtor's income or expenses that are known or virtually certain at the time of confirmation," the U.S. Supreme Court held in Hamilton v. Lanning on June 7. Writing for the 8-1 majority, Justice Samuel A.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Tax exemption, Bankruptcy, Debtor, Interest, Personal property, Dissenting opinion, Majority opinion, Title 11 of the US Code, SCOTUS, Ninth Circuit, United States bankruptcy court, Trustee
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Collateral surcharge denied despite inadequacy of carve-out due to express waiver in DIP financing agreement
    2008-08-01

    As a general rule, absent an express agreement to the contrary, expenses associated with administering the bankruptcy estate, including pledged assets, are not chargeable to a secured creditor’s collateral or claim but must be paid out of the estate’s unencumbered assets. Recognizing, however, that the bankruptcy estate may be called upon to bear significant expense in connection with preserving or disposing of encumbered assets as part of an overall reorganization (or liquidation) strategy, U.S.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Debtor, Collateral (finance), Waiver, Property tax, Limited liability company, Foreclosure, Condominium, Liquidation, Secured creditor, Ninth Circuit, United States bankruptcy court, Trustee
    Location:
    USA
    Firm:
    Jones Day
    Actual test and Footstar approach govern DIP’s ability to assume patent and technology license
    2007-12-11

    Lawmakers’ efforts to overhaul the nation’s bankruptcy laws two years ago as part of the sweeping reforms implemented by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA ”) failed to resolve a number of important business bankruptcy issues that have been and continue to be the subject of protracted debate among the bankruptcy and appellate courts.

    Filed under:
    USA, Insolvency & Restructuring, Intellectual Property, Litigation, Jones Day, Bankruptcy, Conflict of laws, Debtor, Consumer protection, Consideration, Consent, US Federal Government, Ninth Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Jones Day
    Post-Travelers decisions continue the debate regarding the allowability of unsecured creditors’ claims for post-petition attorneys’ fees
    2007-10-01

    Recently, in Travelers Casualty & Surety Co. of America v. Pacific Gas & Electric Co., the U.S. Supreme Court resolved a conflict among the circuit courts of appeal by overruling the Ninth Circuit’s Fobian rule, which dictated that attorneys’ fees are not recoverable in bankruptcy for litigating issues “peculiar to federal bankruptcy law.” In reaching its decision, the Supreme Court reasoned that the Fobian rule’s limitations on attorneys’ fees find no support in either section 502 of the Bankruptcy Code or elsewhere.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Costs in English law, Debtor, Unsecured debt, Unsecured creditor, Title 11 of the US Code, SCOTUS, Ninth Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Jones Day
    Ninth Circuit splits from Fourth Circuit on involuntary bankruptcy standard: In re Marciano
    2013-09-30

    A judgment creditor who is considering filing an involuntary bankruptcy petition against a debtor should consult venue-specific controlling law if the debtor has appealed the judgment. Depending on the jurisdiction, the debtor’s appeal may or may not be a factor for the bankruptcy court to consider in determining whether the creditor’s claim meets the involuntary petition requirements of the Bankruptcy Code.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Debtor, Ninth Circuit, United States bankruptcy court, California Supreme Court, Fourth Circuit
    Location:
    USA
    Firm:
    Jones Day
    Focus on feasibility
    2007-05-31

    One of the most significant changes to chapter 11 of the Bankruptcy Code in the 2005 amendments was the absolute limit placed on extensions of the exclusivity periods. Courts no longer have the discretion to extend a debtor’s exclusive periods to file and solicit a plan beyond 18 months and 20 months, respectively, after the petition date. Although the legislative history contains no explanation for why this change was made, Congress presumably intended to accelerate the reorganization process or facilitate the prospects for competing plans in large, complex cases.

    Filed under:
    USA, Insolvency & Restructuring, Jones Day, Debtor, Hedge funds, Legal burden of proof, Liquidation, Investment funds, SCOTUS, Ninth Circuit
    Location:
    USA
    Firm:
    Jones Day
    A cautionary tale for insider lenders: Ninth Circuit endorses recharacterization remedy in bankruptcy
    2013-07-31

    The ability of a bankruptcy court to reorder the priority of claims or interests by means of equitable subordination or recharacterization of debt as equity is generally recognized. Even so, the Bankruptcy Code itself expressly authorizes only the former of these two remedies. Although common law uniformly acknowledges the power of a court to recast a claim asserted by a creditor as an equity interest in an appropriate case, the Bankruptcy Code is silent upon the availability of the remedy in a bankruptcy case.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Title 11 of the US Code, Ninth Circuit, United States bankruptcy court
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Driving the wedge deeper: Fifth and Ninth Circuits unite in refusing to condemn “artificial impairment” in cramdown chapter 11 plans
    2013-06-01

    One of the prerequisites to confirmation of a cramdown (nonconsensual) chapter 11 plan is that at least one “impaired” class of creditors must vote in favor of the plan. This requirement reflects the basic principle that a plan may not be imposed on a dissident body of stakeholders of which no class has given approval. However, it is sometimes an invitation to creative machinations designed to muster the requisite votes for confirmation of the plan.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Shareholder, Ninth Circuit, Fifth Circuit
    Authors:
    Charles M. Oellermann , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day

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