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    Court may withdraw derivative standing of equity committee
    2009-01-19

    The U.S. Court of Appeals for the Second Circuit has determined that a bankruptcy court may withdraw the derivative standing conferred on a statutory committee without that committee’s consent. Official Comm. of Equity Sec. Holders of Adelphia Communications Corp. v. Official Comm. of Unsecured Creditors of Adelphia Communications Corp. (In re Adelphia Communications Corp.), 544 F.3d 429 (2d Cir. 2008).  

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Reed Smith LLP, Bankruptcy, Debtor, Unsecured debt, Federal Reporter, Investment banking, Standing (law), Second Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Reed Smith LLP
    Delaware Bankruptcy Court decision in SemCrude poses setback to triangular set-off
    2009-01-16

    The United States Bankruptcy Court for the District of Delaware has ruled that a creditor cannot effect a “triangular” setoff of the amounts owed between it and three affiliated debtors, despite pre-petition contracts that expressly contemplated multiparty setoff. In re SemCrude, L.P., Case No. 08-11525 (BLS), 2009 WL 68873 (Bankr. D. Del. Jan. 9, 2009). The Court relied principally on the plain language of section 553(a) of the United States Bankruptcy Code, which limits setoff to mutual obligations between a debtor and a single nondebtor.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Debtor, Federal Reporter, Swap (finance), Debt, Limited partnership, Subsidiary, Chevron Corporation, Title 11 of the US Code, Second Circuit, Delaware Supreme Court, United States bankruptcy court, Seventh Circuit, US District Court for District of Delaware
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Professional’s pre-approved fixed fee award upheld by 2d Cir.
    2009-01-16

    Financial advisors, investment bankers, lawyers and other professionals in reorganization cases should pay close attention to a decision of the U.S. Court of Appeals for the Second Circuit handed down on Jan. 6, 2009. In re Smart World Technologies, LLC, ___ F.3d ___ (2d Cir. 1/6/2009).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Contractual term, Debtor, Federal Reporter, Investment banking, Standing (law), Liquidation, Judicial review, Contingent fee, Precondition, Second Circuit, United States bankruptcy court, Sixth Circuit
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    The Second Circuit confirms that bankruptcy principles trump common law equity
    2009-01-15

    When a creditor seeks equitable relief in a bankruptcy court, must the court always follow common law principles of equity? Not according to several courts, including the Second Circuit. Concluding that the granting of equitable remedies may circumvent the Bankruptcy Code's equitable distribution system, courts have limited the application of equitable remedies in the bankruptcy context.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White & Case, Bankruptcy, Surety, Debtor, Fraud, Interest, Division of property, Reinsurance, Unjust enrichment, Common law, Constructive trust, Title 11 of the US Code, Trustee, Supreme Court of the United States, Second Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    White & Case
    One-year statute of limitations upheld
    2009-04-14

    Vedder Price Wins Reversal in Second Circuit Court of Appeals

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Vedder Price PC, Bankruptcy, Debtor, Statute of limitations, Motion to compel, Liquidation, Remand (court procedure), Second Circuit, United States bankruptcy court
    Authors:
    Michael L. Schein , William W. Thorsness
    Location:
    USA
    Firm:
    Vedder Price PC
    Second Circuit finds termination premiums not dischargeable “claims” in bankruptcy
    2009-04-13

    On April 8, 2009, the United States Court of Appeals for the Second Circuit found that "termination premiums" due under Section 4006(a)(7) of the Employee Retirement Income Security Act ("ERISA") are not "claims" under the Bankruptcy Code and are therefore not dischargeable in bankruptcy.

    Filed under:
    USA, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Pillsbury Winthrop Shaw Pittman LLP, Bankruptcy, Employee Retirement Income Security Act 1974 (USA), Second Circuit
    Location:
    USA
    Firm:
    Pillsbury Winthrop Shaw Pittman LLP
    Second Circuit reverses bankruptcy court’s decision on PGBC termination premiums
    2009-04-16

    Companies that terminate pension plans before filing for bankruptcy may no longer escape paying significant claims to the PBGC.

    In Pension Benefit Guaranty Corporation v. Oneida, Ltd. dated April 8, 2009, the U.S. Court of Appeals for the Second Circuit reversed a ruling by the U.S. Bankruptcy Court for the Southern District of New York characterizing certain “termination premiums” owed to the Pension Benefit Guaranty Corporation (PBGC) pursuant to the Deficit Reduction Act of 2005 as contingent, pre-petition claims and thus dischargeable in bankruptcy.

    Filed under:
    USA, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, McDermott Will & Emery, Bankruptcy, Debtor, Retirement, Bankruptcy discharge, Pension Benefit Guaranty Corporation, Second Circuit, United States bankruptcy court
    Authors:
    Geoffrey T. Raicht
    Location:
    USA
    Firm:
    McDermott Will & Emery
    Second Circuit decision improves PBGC’s position in chapter 11
    2009-04-15

    On April 8, the Second Circuit Court of Appeals reversed the Bankruptcy Court and concluded that special ERISA “termination premiums” due PBGC are not contingent prepetition claims subject to discharge in a chapter 11 reorganization. Pension Benefit Guar. Corp. v. Oneida, Ltd., 2009 WL 929528 (2d Cir. April 8, 2009), rev’g Oneida Ltd. v. Pension Benefit Guar. Corp., 383 B.R. 29 (Bankr. S.D.N.Y., 2008).

    Filed under:
    USA, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Bankruptcy, Employee Retirement Income Security Act 1974 (USA), Debtor, Unsecured debt, Interest, Liquidation, Joint and several liability, Bankruptcy discharge, Pension Benefit Guaranty Corporation, Title 11 of the US Code, Pension Protection Act 2006 (USA), Second Circuit, United States bankruptcy court, US District Court for the Southern District of New York
    Authors:
    Alan W Kornberg , Jeffrey D. Saferstein , Lawrence I. Witdorchic , Robert C. Fleder
    Location:
    USA
    Firm:
    Paul, Weiss, Rifkind, Wharton & Garrison LLP
    Weathering the storm: recent decision creates additional cash requirements to reorganize
    2009-04-30

    On April 8, 2009, the Second Circuit Court of Appeals issued a ruling that creates an additional hurdle for companies providing single-employer pension funds when seeking to reorganize through a bankruptcy. In general, the termination of a pension plan can give rise to a per-employee termination premium (a “Termination Premium”) owed by the company terminating the plan to the Pension Benefit Guaranty Corporation (“PBGC”), the quasi-governmental entity that insures pension plans.

    Filed under:
    USA, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Haynes and Boone LLP, Bankruptcy, Debtor, Consumer protection, Unsecured debt, State-owned enterprise, Liquidation, Pro rata, US Congress, Pension Benefit Guaranty Corporation, US Code, Second Circuit, United States bankruptcy court, US District Court for the Southern District of New York
    Location:
    USA
    Firm:
    Haynes and Boone LLP
    Junior lien holder bankruptcy stays foreclosure by senior lien holder
    2009-04-27

    A bankruptcy filing by a property owner may not be the only action that prevents foreclosure of a security interest in that property held by a secured creditor. In a growing list of cases, courts also have held the bankruptcy of a junior secured creditor with a lien on the property invokes the automatic stay against such action.

    Filed under:
    USA, Texas, Insolvency & Restructuring, Litigation, Real Estate, Reed Smith LLP, Bankruptcy, Debtor, Interest, Federal Reporter, Mortgage loan, Personal property, Foreclosure, Secured creditor, Secured loan, Title 11 of the US Code, Second Circuit, United States bankruptcy court, Fifth Circuit, Fourth Circuit, Seventh Circuit
    Authors:
    Mike C. Buckley
    Location:
    USA
    Firm:
    Reed Smith LLP

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