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    U.S. Court of Appeals for the Second Circuit Issues Decision Interpreting the Bankruptcy Code’s Section 560 Safe Harbor for Swap Agreements
    2020-08-24

    On August 11, 2020, the United States Court of Appeals for the Second Circuit issued an Opinion in Lehman Brothers Special Financing Inc. (“LBSF”) v. Bank of America, N.A., et. al, No. 18-1079,[1] an adversary proceeding brought in the Chapter 11 bankruptcy proceeding of Lehman Brothers Holdings, Inc.

    Filed under:
    USA, Derivatives, Insolvency & Restructuring, Litigation, FisherBroyles LLP, Bankruptcy, Title 11 of the US Code, Second Circuit
    Authors:
    Julian Hammar , Hollace Topol Cohen
    Location:
    USA
    Firm:
    FisherBroyles LLP
    Lehman Brothers swap clawback effort rejected By Second Circuit
    2020-08-19

    The Second Circuit ruled last week in Lehman Bros. Special Fin. Inc. v. Bank of Am. Nat'l Ass'n, No. 18-1079 (2d Cir. 2020) that a Lehman Brothers affiliate cannot claw back $1 billion in payments made pursuant to swap agreements that were terminated when Lehman Brothers Holdings Inc. (“LBHI”) and certain of its affiliates filed for bankruptcy in 2008. The panel concluded that the Bankruptcy Code provides a safe harbor for the liquidation of such swap agreements and also the distribution of proceeds from the collateral.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, Hogan Lovells, Swap (finance), Lehman Brothers, Title 11 of the US Code, Second Circuit
    Authors:
    Peter Ivanick , Jennifer Lee
    Location:
    USA
    Firm:
    Hogan Lovells
    Avoidance Kept at Bay: Bank Customers as “Financial Institutions” Under the 546(e) Securities Safe Harbor
    2020-06-25

    Analyzing the inner workings of the elements required for the securities contract “safe harbor” protection under Section 546(e) of the Bankruptcy Code, the Bankruptcy Court for the SDNY dismissed a complaint seeking to recover approximately US$1 billion in allegedly fraudulent transfers brought against various transferees as part of the Boston Generating Chapter 11 case.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, Dechert LLP, Title 11 of the US Code, Second Circuit
    Authors:
    Shmuel Vasser , Yehuda Goor
    Location:
    USA
    Firm:
    Dechert LLP
    New York District Court Expands the Scope of the Bankruptcy Safe Harbor for LBO Payments
    2020-12-11

    In 2019, the U.S. Court of Appeals for the Second Circuit made headlines when it ruled that creditors' state law fraudulent transfer claims arising from the 2007 leveraged buyout ("LBO") of Tribune Co. ("Tribune") were preempted by the safe harbor for certain securities, commodity or forward contract payments set forth in section 546(e) of the Bankruptcy Code. In In re Tribune Co. Fraudulent Conveyance Litig., 946 F.3d 66 (2d Cir. 2019), petition for cert. filed, No. 20-8-07102020, 2020 WL 3891501 (U.S.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Jones Day, Private equity, Second Circuit, U.S. Court of Appeals
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    New York Court of Appeals Ruling Could Shift Negotiating Leverage to Holdout Noteholders in Out-of-Court Restructurings
    2020-11-18

    The New York Court of Appeals’ recent 4-3 opinion in CNH Diversified Opportunities Master Account, L.P. v. Cleveland Unlimited, Inc., 2020 WL 6163305 (NY Oct. 22, 2020), could provide minority noteholders with additional negotiating leverage in the context of attempted out-of-court restructurings. However, the scope of this decision’s impact, and whether it conflicts with the U.S. Court of Appeals for the Second Circuit’s prior holding in Marblegate Asset Mgmt., LLC v. Educ. Mgmt. Fin. Corp., 846 F.3d 1 (2d Cir.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Skadden Arps Slate Meagher & Flom LLP, Second Circuit, New York Court of Appeals
    Authors:
    Van C. Durrer II , Evan A. Hill , Bram A. Strochlic
    Location:
    USA
    Firm:
    Skadden Arps Slate Meagher & Flom LLP
    Second Circuit Holds That So-Called “Flip” Clause Payments Are Protected by Section 560 of the Bankruptcy Code
    2020-09-08

    The Bottom Line

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Private Client & Offshore Services, Kramer Levin Naftalis & Frankel LLP, Collateralized debt obligation, Credit default swap, Title 11 of the US Code, Trustee, Second Circuit
    Authors:
    Fabien Carruzzo , David E. Blabey, Jr , Hunter Blain
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Second Circuit establishes relevant time period for center of main interests determination under chapter 15 of the Bankruptcy Code
    2013-04-29

     

    In Morning Mist Holdings Limited v. Krys (In re Fairfield Sentry Limited), Case No. 11-4376, 2013 WL 1593348 (2d Cir.

    Filed under:
    British Virgin Islands, USA, Insolvency & Restructuring, Litigation, Duane Morris LLP, Liquidation, Title 11 of the US Code, Second Circuit, United States bankruptcy court, Fifth Circuit
    Authors:
    Rudolph J. Di Massa, Jr. , William C. Heuer , Ron Oliner , Rosanne Ciambrone
    Location:
    British Virgin Islands, USA
    Firm:
    Duane Morris LLP
    Second Circuit issues ruling regarding determination of a debtor's center of main interest under Chapter 15
    2013-05-01

    On April 16, 2013, the United States Court of Appeals for the Second Circuit (the "Second Circuit") issued its decision in In re Fairfield Sentry Ltd.,1 in which the court held that (1) the relevant time for analyzing a debtor’s center of main interest ("COMI") for purposes of recognizing a foreign proceeding is at or around the time a petition for recognition is filed; (2) the determination of COMI is dependent on the facts of each case, which may include insolvency proceedings in the foreign jurisdiction; and (3) the public policy exception to relief sough

    Filed under:
    British Virgin Islands, Insolvency & Restructuring, Litigation, Private Client & Offshore Services, Hunton Andrews Kurth LLP, Second Circuit
    Authors:
    Benjamin C. Ackerly , Andrew Kamensky , Tyler P. Brown , Richard P. Norton , Jarrett L. Hale , Peter S. Partee, Sr.
    Location:
    British Virgin Islands
    Firm:
    Hunton Andrews Kurth LLP
    Marblegate: what does it mean for European restructurings?
    2017-01-25

    In a highly-anticipated decision on a long-running bondholder dispute, the US Court of Appeals for the Second Circuit issued its judgment last week in Marblegate Asset Management LLC v Education Management Corp. It concluded that “Section 316(b) [of the US Trust Indenture Act 1939] prohibits only non-consensual amendments to an indenture’s core payment terms”, i.e. the amount of principal and interest owed and the maturity date.

    Filed under:
    European Union, USA, Capital Markets, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, Bankruptcy, Consideration, Second Circuit
    Authors:
    Andrew Wilkinson , Alexander Wood , Patrick Bright , Nitin Konchady
    Location:
    European Union, USA
    Firm:
    Weil Gotshal & Manges LLP
    Euroresource—deals and debt - June 2014
    2014-06-30

    For the benefit of our clients and friends investing in European distressed opportunities, our European Network is sharing some current developments.

    Recent Developments

    Filed under:
    European Union, USA, Insolvency & Restructuring, Litigation, Jones Day, Debt, Second Circuit
    Authors:
    Corinne Ball , Veerle Roovers
    Location:
    European Union, USA
    Firm:
    Jones Day

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