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    Chrysler asset sale approved
    2009-08-26

    On May 31, 2009, approximately 30 days after Chrysler Group LLC and affiliated debtors filed for bankruptcy relief, the United States Bankruptcy Court for the Southern District of New York authorized the sale of substantially all of Chrysler’s assets to “New Chrysler” – an entity formed by Chrysler and Fiat Automobiles SpA and initially majority-owned by Chrysler’s Voluntary Employees’ Beneficiary Association (VEBA) – free and clear of liens, claims and encumbrances under section 363 of the United States Bankruptcy Code (the Fiat Transaction).

    Filed under:
    USA, Insolvency & Restructuring, Squire Patton Boggs, Bankruptcy, Debtor, Fiduciary, Consideration, Due process, Liquidation, Good faith, United Automobile Workers, Chrysler, Second Circuit, United States bankruptcy court
    Authors:
    Elliot M. Smith
    Location:
    USA
    Firm:
    Squire Patton Boggs
    The triangular setoff after SemCrude
    2009-08-26

    An opinion issued earlier this year by the Delaware Bankruptcy Court in In re SemCrude, L.P., et al. (Bankr. Del., No. 08-11525; January 9, 2009) may end much of the practice of so-called “triangular setoffs” by creditors in bankruptcy cases. The Court in SemCrude found that creditors violate section 553 of the Bankruptcy Code by setting off amounts among multiple debtors, even when exercising contractual assignment rights. This ruling is likely to have far-reaching impact given the dearth of case law on this fairly common contractual provision.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Bankruptcy, Debtor, Unsecured debt, Security (finance), Safe harbor (law), Federal Reporter, Debt, Liability (financial accounting), DuPont, Chevron Corporation, US Code, Title 11 of the US Code, Second Circuit, Delaware Supreme Court, United States bankruptcy court
    Authors:
    Andrew M. Simon
    Location:
    USA
    Firm:
    Squire Patton Boggs
    Bankruptcy court denies motions to dismiss cases of SPE subsidiaries of General Growth Properties, Inc. - role of independent managers addressed; Section 18-1101(c) of Delaware LLC Act ignored
    2009-09-01

    On August 11, a United States bankruptcy judge denied motions to dismiss the Chapter 11 cases of 21 special purpose entity (“SPE”) subsidiaries (the “Subject Debtors”) of General Growth Properties, Inc. (“GGP”). A final order denying the motions was entered on August 28. The decision raises a number of issues, primarily with respect to the role of independent managers, that are of particular interest to the commercial mortgage-backed securities (“CMBS”) industry.

    Lessons from the GGP Cases

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Securitization & Structured Finance, Locke Lord LLP, Bankruptcy, Debtor, Collateral (finance), Federal Reporter, Limited liability company, Limited partnership, Joint venture, Default (finance), Subsidiary, Commercial mortgage-backed security, Mortgage-backed security, Secured loan, Second Circuit, United States bankruptcy court, US District Court for the Southern District of New York
    Authors:
    Edward J. Bertozzi, Jr. , Lorne W. McDougall , Kathleen M. Conlon , Theodore W. Connolly
    Location:
    USA
    Firm:
    Locke Lord LLP
    Chrysler and GM: courts extend law on sales, recharacterization
    2009-09-30

    Earlier this year, Courts from the Bankruptcy Courts for the Southern District of New York to the United States Supreme Court issued a number of rulings approving the asset sales by Chrysler and General Motors. Although popular and industry media have been replete with stories regarding the facts of these cases, this article provides an in-depth analysis of the Courts’ rulings on several key issues of interest to debtors and creditors in future bankruptcies.

    Summary of Key Rulings

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Liquidation, Bridge loan, US Department of the Treasury, United Automobile Workers, General Motors, Chrysler, Supreme Court of the United States, Second Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    363 asset sales: the latest restructuring tool
    2009-10-01

    Introduction

    The dearth of credit available for companies in financial distress means an asset sale may be the only way to save the business and jobs. It also presents unusually attractive investment opportunities for public and private companies, private equity and hedge funds, and other investors with capital and an ability to move expeditiously.

    Filed under:
    USA, Corporate Finance/M&A, Insolvency & Restructuring, Greenberg Traurig LLP, Bankruptcy, Credit (finance), Debtor, Private equity, Privately held company, Hedge funds, Investment banking, Liability (financial accounting), Liquidation, Due diligence, Conveyancing, Secured loan, General Motors, Title 11 of the US Code, Second Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Greenberg Traurig LLP
    Spotlight on Sotomayor Second Circuit bankruptcy rulings
    2009-09-30

    On Thursday, August 6, 2009, the United States Senate confirmed Justice Sonia Sotomayor to the Supreme Court of the United States. As a former Judge on the Court of Appeals for the Second Circuit, Judge Sotomayor’s jurisprudence includes a number of decisions involving noteworthy bankruptcy cases. This article provides a brief survey of these decisions.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Shareholder, Debtor, Security (finance), Fraud, Admiralty law, In rem jurisdiction, Securities fraud, US Securities and Exchange Commission, US Senate, Sarbanes-Oxley Act 2002 (USA), Supreme Court of the United States, Second Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Supreme Court leaves open issue of third-party releases
    2009-10-15

    The U.S. Supreme Court has issued a long-awaited decision that many practitioners had hoped would provide insight into the permissible breadth of third-party releases and injunctions often contained in confirmed chapter 11 plans. The high court, however, narrowly resolved the issue presented in Travelers Indem. Co. v. Bailey, 129 S.Ct. 2195 (2009), and left open that ultimate question.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Reed Smith LLP, Bankruptcy, Debtor, Injunction, Statutory interpretation, Res judicata and issue estoppel, Dissenting opinion, Supreme Court of the United States, Second Circuit, United States bankruptcy court
    Authors:
    Derek J. Baker
    Location:
    USA
    Firm:
    Reed Smith LLP
    Opportunities in distressed real estate assets
    2009-10-29

    363 Asset Sales: The Latest Restructuring Tool

    Introduction

    The dearth of credit available for companies in financial distress means an asset sale may be the only way to save the business and jobs. It also presents unusually attractive investment opportunities for public and private companies, private equity and hedge funds, and other investors with capital and an ability to move expeditiously.

    Filed under:
    USA, Insolvency & Restructuring, Real Estate, Greenberg Traurig LLP, Bankruptcy, Credit (finance), Debtor, Private equity, Fiduciary, Marketing, Privately held company, Hedge funds, Investment banking, Liability (financial accounting), Liquidation, Due diligence, Conveyancing, General Motors, Title 11 of the US Code, Second Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Greenberg Traurig LLP
    Champerty clarified: a victory for activist distressed debt and claims investors
    2009-11-03

    In a decision to be hailed by buyers of distressed debt and bankruptcy claims on the secondary loan market, on Oct. 15, 2009, the New York Court of Appeals (the “Court”), in a fact-specific ruling, held that an assignment of claim does not violate New York’s champerty statute (forbidding trading in litigation claims) if the purpose of the assignment is to collect damages by means of a lawsuit for losses on a debt instrument in which the assignee holds a pre-existing proprietary interest. Trust for the Certificate Holders of the Merrill Lynch Mortgage Investors, Inc.

    Filed under:
    USA, New York, Banking, Insolvency & Restructuring, Litigation, Securitization & Structured Finance, Schulte Roth & Zabel LLP, Security (finance), Fraud, Accounts receivable, Interest, Mortgage loan, Foreclosure, Default (finance), Distressed securities, Mortgage-backed security, Commercial mortgage, Merrill, UBS, Second Circuit
    Authors:
    Lawrence V. Gelber , David J. Karp
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Second Circuit allows post-bankruptcy legal fees based on pre-bankruptcy indemnity agreement
    2009-11-13

    The United States Court of Appeals for the Second Circuit held on Nov. 5, 2009, that a creditor was entitled to its post-bankruptcy legal fees incurred on a pre-bankruptcy indemnity agreement. Ogle v. Fid. & Deposit Co. of Md., __F.3d __, No. 09-0691-bk, 2009 U.S. App. LEXIS 24329 (2d Cir. Nov. 5, 2009). Affirming the lower courts, the Second Circuit explained that the Bankruptcy Code (“Code”) “interposes no bar . . . to recovery.” Id. at *8-9 (citing Travelers Cas. & Sur. Co. of Am. v. Pac. Gas & Elec. Co., 549 U.S.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Bankruptcy, Debtor, Federal Reporter, Default (finance), Substantive law, Attorney's fee, Unsecured creditor, Eighth Circuit, Second Circuit, Ninth Circuit
    Authors:
    Michael L. Cook , Lawrence V. Gelber , Adam C. Harris , David M. Hillman , Brian D. Pfeiffer
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP

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