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    Fifth Circuit Embraces Flexible Approach to Countryman Test of Executoriness in Bankruptcies Involving Multiparty Contracts
    2022-12-05

    Whether a contract is "executory" such that it can be assumed, rejected, or assigned in bankruptcy is a question infrequently addressed by the circuit courts of appeals. The U.S. Court of Appeals for the Fifth Circuit provided some rare appellate court-level guidance on the question in Matter of Falcon V, L.L.C., 44 F.4th 348 (5th Cir. 2022). The Fifth Circuit affirmed lower-court rulings determining that a surety contract was not executory because the surety had already posted irrevocable surety bonds and did not owe further performance to the debtors.

    Filed under:
    USA, Company & Commercial, Insolvency & Restructuring, Litigation, Jones Day, NLRB, US Congress, SCOTUS, United States bankruptcy court, Fifth Circuit, Third Circuit
    Authors:
    Dan B. Prieto , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Third Circuit Holds Ethical Screen Insulates Side-Switching Lawyer’s New Firm
    2022-10-07

    The Third Circuit recently affirmed a bankruptcy court’s denial of a defendant’s motion to disqualify the plaintiff’s law firm in a large adversary proceeding, holding that it had not abused its discretion because the plaintiff law firm (W) had “complied with” American Bar Association Model Rule of Professional Conduct 1.10(a)(2). In re Maxus Energy Corp., 2022 WL 4113656, *4 (3d Cir. Sept. 9, 2022). According to the court, a lawyer (B) who “moved from” the defendant’s law firm “to the [plaintiff’s] firm” was not cause for W (the new firm) to be disqualified.

    Filed under:
    USA, Insolvency & Restructuring, Law Firm Management, Litigation, Schulte Roth & Zabel LLP, Third Circuit
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    3rd Circuit to Rule on the Validity of the “Texas Two-Step” in Chapter 11 Cases
    2022-09-21

    On September 19, 2022, a panel of three appellate judges for the 3rd Circuit heard oral argument in a closely-watched case, In re LTL Management LLC, Case No. 22-2003.

    Filed under:
    USA, Texas, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, United States bankruptcy court, Third Circuit
    Location:
    USA
    River Road court certifies direct appeal to the Seventh Circuit Court of Appeals on credit bid issue
    2011-04-06

    On November 4, 2010, the United States Bankruptcy Court for the Northern District of Illinois certified the appeal of debtors River Road Hotel Partners, LLC, et al. of the court’s Order Denying Debtors’ Bid Procedures Motion (the Order) entered October 5, 2010. In its Order, the bankruptcy court expressly denied the debtors’ attempts to prevent their secured creditors from credit bidding in a proposed sale of assets under a chapter 11 plan.

    Filed under:
    USA, Illinois, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Credit (finance), Debtor, Interest, Federal Reporter, Amicus curiae, Dissenting opinion, Secured creditor, Majority opinion, Secured loan, United States bankruptcy court, Fifth Circuit, Third Circuit, US District Court for Northern District of Illinois
    Location:
    USA
    Firm:
    Squire Patton Boggs
    A statutory basis for substantive consolidation? In re Cyberco Holdings, Inc., 431 B.R. 404 (Bankr. W.D. Mich. 2010)
    2011-04-06

    A popular line of thinking among bankruptcy practitioners and commentators holds that substantive consolidation – the combining of assets and liabilities of a debtor and another debtor or non-debtor entity to satisfy creditor claims against both entities ratably from the resulting pool – is an equitable remedy of judicial invention with no specific foundation in the Bankruptcy Code.

    Filed under:
    USA, Michigan, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Bankruptcy, Debtor, Fraud, Federal Reporter, Liability (financial accounting), Title 11 of the US Code, Second Circuit, United States bankruptcy court, Third Circuit
    Authors:
    Andrew M. Simon
    Location:
    USA
    Firm:
    Squire Patton Boggs
    Second Circuit designation ruling serves wake-up call to strategic bankruptcy investors
    2010-12-15

    Introduction

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Interest, Federal Reporter, Debt, Maturity (finance), Good faith, Bad faith, Line of credit, Secured loan, Title 11 of the US Code, Dish Network, Second Circuit, United States bankruptcy court, Third Circuit, US District Court for SDNY
    Authors:
    Peter A. Zisser , Sandra E. Mayerson
    Location:
    USA
    Firm:
    Squire Patton Boggs
    Third Circuit restricts lenders’ right to credit bid on collateral sold through a plan of reorganization
    2010-04-28

    The Third Circuit Court of Appeals dealt a blow to secured creditors in its recent decision holding that a debtor may prohibit a lender from credit bidding on its collateral in connection with a sale of assets under a plan of reorganization. In the case of In re Philadelphia Newspapers, LLC, No. 09-4266 (3d Cir. Mar. 22, 2010), the court, in a 2-1 decision, determined that a plan that provides secured lenders with the “indubitable equivalent” of their secured interest in an asset is not required to permit credit bidding when that asset is sold.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Credit (finance), Debtor, Collateral (finance), Interest, Federal Reporter, Limited liability company, Debt, Personal property, Secured creditor, Secured loan, Title 11 of the US Code, United States bankruptcy court, Fifth Circuit, Third Circuit, US District Court for Eastern District of Pennsylvania
    Location:
    USA
    Firm:
    Squire Patton Boggs
    Third Circuit reaffirms 1999 O’Brien decision regarding application of Bankruptcy Code Section 503(b) to break-up fees of stalking horse bidders
    2010-04-28

    In 1999 the Third Circuit Court of Appeals rendered its decision in Calpine Corp. v. O’Brien Environmental Energy, Inc. (In re O’Brien Environmental Energy, Inc.), 181 F.2d 527, denying Calpine Corporation’s request for the payment of a break-up fee after Calpine lost its effort to acquire the assets of O’Brien Environmental Energy out of bankruptcy.

    Filed under:
    USA, Energy & Natural Resources, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Bankruptcy, Debtor, Interest, Marketing, Limited liability company, Due diligence, Non-disclosure agreement, United States bankruptcy court, Third Circuit
    Authors:
    Nicholas J. Brannick
    Location:
    USA
    Firm:
    Squire Patton Boggs
    Delaware bankruptcy court’s Pillowtex decision favors preference defendant relying on subsequent new value defense
    2009-10-20

    The October 15, 2009 decision of the US Bankruptcy Court for the District of Delaware in In re Pillowtex opens the door for creditors in the Third Circuit to increase their "new value" preference defense under the "subsequent advance" approach.In re Pillowtex, No. 03-12339 (Bankr. D. Del. filed Oct. 15, 2009).

    A trustee’s power to avoid preference payments is circumscribed by the statutory defenses set forth in section 547(c) of the Bankruptcy Code. The "subsequent new value" defense set forth in section 547(c)(4) has three well-established elements:

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Bankruptcy, Credit (finance), Debtor, Unsecured debt, Federal Reporter, Westlaw, Third Circuit, US District Court for District of Delaware
    Location:
    USA
    Firm:
    Squire Patton Boggs
    Make Me a Tender Offer! EFH Settlement Gets Third Circuit Approval
    2016-05-16

    On May 4, 2016, the Court of Appeals for the Third Circuit held that a bankruptcy settlement in the form of a tender offer did not violate the principles of the bankruptcy process. See opinion here.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Secured creditor, Tender offer, United States bankruptcy court, Third Circuit
    Authors:
    Aditi Kulkarni
    Location:
    USA
    Firm:
    Squire Patton Boggs

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