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    Second Circuit adopts abuse of discretion standard of review for equitable mootness decisions
    2012-09-20

    On August 31, 2012, the United States Court of Appeals for the Second Circuit published its first decision expressly adopting an abuse of discretion standard for reviewing equitable mootness determinations by district courts. In In re Charter Communications, Inc., the Second Circuit followed the Third and Tenth Circuits, while also reaffirming the Second Circuit’s rebuttable presumption of equitable mootness upon substantial consummation of a debtor’s plan.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Standard of review, Second Circuit, United States bankruptcy court
    Authors:
    Thomas Curtin
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Breaking up is hard to do: Third Circuit affirms administrative expense standard for approval of break-up fees
    2010-06-15

    Introduction

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Debtor, Standard of review, Due diligence, Business judgement rule, Eighth Circuit, Second Circuit, United States bankruptcy court, Third Circuit
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Supreme Court declares bankruptcy courts’ jurisdiction to decide counterclaims based on state common law unconstitutional
    2011-07-07

    The United States Supreme Court recently ruled in Stern v. Marshall1 that a bankruptcy court lacks constitutional authority to render a final judgment on a bankruptcy estate’s counterclaim against a creditor based on state common law, despite an express statutory grant of jurisdiction. This ruling is the most significant decision regarding bankruptcy court jurisdiction since the Court’s 1982 decision in Northern Pipeline v. Marathon2 and it could significantly affect the administration of bankruptcy cases.

    Root of the Constitutional Problem

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Media & Entertainment, Troutman Pepper, Bankruptcy, Tortious interference, Defamation, Standard of review, Constitutionality, Common law, Subject-matter jurisdiction, Title 11 of the US Code, US Constitution, Article III US Constitution, US Congress, SCOTUS, Ninth Circuit, United States bankruptcy court
    Authors:
    Michael H. Reed
    Location:
    USA
    Firm:
    Troutman Pepper
    Second Circuit rules against net winners in Madoff “net equity” dispute
    2011-08-18

    In a decision likely to affect thousands of Madoff investors, the Second Circuit Court of Appeals on Aug. 16, 2011 unanimously upheld the method used by the liquidating trustee for Bernard L.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, White Collar Crime, Schulte Roth & Zabel LLP, Security (finance), Fraud, Standard of review, Liquidation, Broker-dealer, Investment funds, Market value, Pro rata, Securities Investor Protection Corporation, Second Circuit, United States bankruptcy court, Trustee
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Appeals from disallowances of claims by trustees: true appeals or hearings de novo?
    2011-03-14

    One of the duties of a trustee is to examine each claim presented by a potential creditor of the
    bankrupt and to determine whether such a claim is valid. A trustee is entitled, under
    subsection 135(2) of the BIA, to disallow any claim, priority or security that it finds unproven or
    invalid. In the event that a creditor’s claim is disallowed by a trustee, that creditor is entitled to appeal that decision to the superior court in the province. A creditor has 30 days after the
    receipt of the trustee’s reasons for disallowance to file an appeal, although an extension may be

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Dentons, Bankruptcy, Discovery, Standard of review, Admissible evidence, Trustee
    Authors:
    Christopher J. Ramsay
    Location:
    Canada
    Firm:
    Dentons
    In re TOUSA—Florida District Court Reverses and Quashes Bankruptcy Court Fraudulent Transfer Decision
    2011-02-14

    Introduction

    Filed under:
    USA, Florida, Insolvency & Restructuring, Litigation, Mayer Brown, Bond (finance), Bankruptcy, Fraud, Debt, Standard of review, Remand (court procedure), Subsidiary, United States bankruptcy court
    Authors:
    Brian Trust , Howard S. Beltzer , Sean T. Scott
    Location:
    USA
    Firm:
    Mayer Brown
    Restructuring without a plan
    2008-10-20

    On 15 August 2008, the British Columbia Court of Appeal released its reasons for judgment in Cliffs Over Maple Bay Investments Ltd. v. Fisgard Capital Corp. (CA036261). Tysoe J.A., for the court, said that a CCAA stay of proceedings “should not be granted or continued if the debtor company does not intend to propose a compromise or arrangement to its creditors.” CCAA filings designed to permit a debtor company to carry on business and to run a sales process for the sale of all or a substantial portion of the debtor company’s business is relatively common.

    Filed under:
    Canada, British Columbia, Insolvency & Restructuring, Litigation, Borden Ladner Gervais LLP, Debtor, Mortgage loan, Standard of review, Stakeholder (corporate), Refinancing, Companies' Creditors Arrangement Act 1933 (Canada), Court of Appeal for Ontario
    Location:
    Canada
    Firm:
    Borden Ladner Gervais LLP
    Supreme Court reaffirms role of bankruptcy courts in Arkison decision
    2014-06-16

    The case of Executive Benefits Insurance Agency v. Arkison (In re Bellingham Ins. Agency), No. 12- 1200, was easily one of the most closely watched bankruptcy cases in many years. Last week’s decision in that case, however, was far less dramatic than  some practitioners feared it might be. The Supreme Court answered two important questions regarding the power of bankruptcy courts that it left open three years ago in Stern v. Marshall.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Winston & Strawn LLP, Bankruptcy, Standard of review, SCOTUS, United States bankruptcy court
    Authors:
    Linda T. Coberly , Steffen N. Johnson , Elizabeth P. Papez
    Location:
    USA
    Firm:
    Winston & Strawn LLP
    Too-big-to-fail bailout avoidance provisions
    2010-08-24

    Title II of the Act, designated "Orderly Liquidation Authority" – effective July 21, 2010 – establishes what is intended to be an orderly liquidation process for "financial companies" whose collapse or potential collapse are determined to constitute a risk to the financial system as a whole. Such systemically significant institutions would be liquidated under these new procedures, rather than being treated under existing bankruptcy laws. (The intent of Act is that most-failing financial companies will continue to be administered under existing bankruptcy laws.)

    Filed under:
    USA, Banking, Insolvency & Restructuring, Duane Morris LLP, Bankruptcy, Shareholder, Injunction, Security (finance), Board of directors, Standard of review, Liquidation, Underwriting, Subsidiary, Dodd-Frank Wall Street Reform and Consumer Protection Act 2010 (USA), Federal Deposit Insurance Corporation (USA)
    Location:
    USA
    Firm:
    Duane Morris LLP

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