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    No WARN liability for lender despite exercise of substantial control
    2008-04-24

    The Worker Adjustment and Retraining Notification Act (“WARN”) requires an employer to give 60 days’ advance written notice prior to a plant closing or mass layoff. Frequently, as a company encounters financial distress—a situation that often leads to a plant closing or mass layoff— creditors exercise greater control over the entity in an attempt to recover debts owed to them. When the faltering company fails to provide the requisite WARN notice, terminated employees often assert that WARN liability should attach to such creditors. In Coppola v. Bear, Stearns & Co.

    Filed under:
    USA, Employment & Labor, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Debtor, Fraud, Debt, Mortgage loan, General counsel, Liquidation, Line of credit, Bear Stearns, Eighth Circuit, Second Circuit
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Contract party’s full performance does not prevent rejection of contract
    2008-07-31

    In COR Route 5 Co. v. Penn Traffic Co.1 (In re Penn Traffic Co), the United States Court of Appeals for the Second Circuit held that a non-debtor party to an executory contract may not, by fulfilling its contractual obligations post-petition, deprive the debtor of its ability to reject an executory contract.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Retail, Debtor, Breach of contract, Limited liability company, Remand (court procedure), Affirmative action, Second Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Can an executory contract lose its executoriness? "Maybe," says the Second Circuit
    2008-08-01

    The ability of a chapter 11 debtor-in-possession (“DIP”) or bankruptcy trustee to assume or reject unexpired leases or contracts that are “executory” as of the bankruptcy filing date is one of the most important entitlements created by the Bankruptcy Code. It allows a DIP to rid itself of onerous contracts and to preserve contracts that can either benefit its reorganized business or be assigned to generate value for the bankruptcy estate and/or fund distributions to creditors under a chapter 11 plan.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Jones Day, Bankruptcy, Debtor, Breach of contract, Employment contract, Trustee, Second Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Jones Day
    Second Circuit: new Parmalat liable for old Parmalat "Frankenstein" suits
    2008-09-03

    On July 22, 2008, the US Court of Appeals for the Second Circuit affirmed denial of the motion of Parmalat S.p.A. ("New Parmalat") to extend an injunction provided to its predecessor, Parmalat Finanziaria, S.p.A., under Bankruptcy Code section 304, against securities fraud actions.1 Although the appeal addressed the issue of injunction in the context of superseded Bankruptcy Code section 304, this decision and the underlying lower court opinion signify other issues of broader import, including the need for careful plan drafting and the complexities inherent in cross-border cases.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, White Collar Crime, White & Case, Bankruptcy, Unsecured debt, Injunction, Fraud, Class action, Debt, Liquidation, Comity, Joint-stock company, Securities fraud, Second Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    White & Case
    Careless plan drafting causes harm in two recent court cases
    2008-09-03

    Two recent Federal appeals court decisions — one issued by the Fifth, the other by the Second Circuit — illustrate the dangers of careless drafting of bankruptcy and reorganization plans. In the Fifth Circuit decision, a drafting error prevented a company reorganized under Chapter 11 from suing the administrators of its property during its bankruptcy for fraud, breach of fiduciary duty and negligence, thereby potentially depriving its creditors of bankruptcy assets.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White & Case, Bankruptcy, Breach of contract, Fraud, Class action, Fiduciary, Negligence, Leverage (finance), Securities fraud, Second Circuit, Fifth Circuit
    Location:
    USA
    Firm:
    White & Case
    Preferential transfer claims are not subject to pre-petition arbitration agreements
    2008-09-30

    In Bethlehem Steel Corp. v. Moran Towing Corp. (In re Bethlehem Steel Corp.),1 the United States Bankruptcy Court for the Southern District of New York held that preferential transfer claims were not arbitrable. The Court reasoned that because the avoidance powers did not belong to the debtor, but rather were creditor claims that could only be brought by a trustee or debtor-in-possession, they were not subject to the arbitration clauses in contracts to which the creditors were not parties.

    The Dispute and the Arbitration Clauses

    Filed under:
    USA, New York, Arbitration & ADR, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Security (finance), Arbitration clause, Liquidation, Debtor in possession, US Congress, Title 11 of the US Code, Trustee, Second Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Interracial marriage supports Title VII association claim
    2008-12-10

    In a case of first impression, the United States Court of Appeals for the Second Circuit recently held that antidiscrimination laws may be violated when a white employee is fired for having a black spouse. In Holcomb v. Iona College, 521 F.3d 130 (2d Cir. 2008), the Second Circuit vacated and remanded a federal district court’s grant of summary judgment in favor of Iona College (the “College”), finding that triable issues existed as to whether the College’s decision to terminate its employee, Craig Holcomb, was based at least in part upon a racially discriminatory motive.

    Filed under:
    USA, Employment & Labor, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Discrimination, Federal Reporter, Vacated judgment, Voluntary association, Legal burden of proof, Marriage, Remand (court procedure), Prima facie, Civil Rights Act 1964 (USA), Second Circuit, Eleventh Circuit, Sixth Circuit
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Second Circuit clarifies meaning and application of retention provision under Bankruptcy Code
    2009-01-14

    On January 6, 2009, the United States Court of Appeals for the Second Circuit rendered a decision in the case of Riker, Danzig, Scherer, Hyland & Perretti v. Official Comm. of Unsecured Creditors (In re: Smart World Tech., LLC) that clarifies the implications of a bankruptcy court's "pre-approval" of the terms of a professional's retention by the bankruptcy estate under Sections 327 and 328 of the Bankruptcy Code.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Contractual term, Bankruptcy, Debtor, ISP, Liquidation, Contingent fee, Second Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Squire Patton Boggs
    Second Circuit affirms dismissal of insureds' constructive trust counterclaim over reinsurance bankruptcy settlement proceeds
    2009-01-13

    The “Ades” and “Berg” groups of investors (the “Ades Berg Group”), were parties who joined in the bankruptcy proceedings of the Bennett Funding Group, Inc. and related companies (the “Bennett Group”), based on claims that, among other things, the Bennett Group had defrauded them in an investment scheme. The Bennett Group was insured under a reinsurance contract issued by Sphere Drake Insurance PLC (“Sphere Drake”). A settlement was reached in the course of the bankruptcy proceedings between some groups of investors and Sphere Drake.

    Filed under:
    USA, Insolvency & Restructuring, Insurance, Litigation, Jorden Burt LLP, Bankruptcy, Debtor, Fraud, Reinsurance, Prejudice, Constructive trust, Trustee, Supreme Court of the United States, Second Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Jorden Burt LLP
    Non-parties enjoined from filing bankruptcy petitions against entities in receivership
    2009-01-09

    The Securities and Exchange Commission brought an action against several individuals and related investment entities (the Wextrust Entities) who allegedly participated in a Ponzi scheme that purportedly defrauded over 1,000 investors of approximately $255 million.

    Filed under:
    USA, New York, Capital Markets, Insolvency & Restructuring, Litigation, Katten Muchin Rosenman LLP, Bankruptcy, Injunction, Fraud, US Securities and Exchange Commission, Westlaw, Second Circuit, Ninth Circuit, Sixth Circuit, US District Court for the Southern District of New York
    Location:
    USA
    Firm:
    Katten Muchin Rosenman LLP

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