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    Qimonda's impact on patent licenses when a licensor goes bankrupt in a foreign land
    2011-12-22

    Can a U.S. patent licensee whose license has been rejected by a licensor under foreign law in a foreign bankruptcy rely on the protections of § 365(n) of the U.S. Bankruptcy Code? On October 28, 2011, the United States Bankruptcy Court for the Eastern District of Virginia issued an opinion addressing this in the Chapter 15 case of Qimonda AG (“Qimonda”).5 The bankruptcy court held that the application of § 365(n) to executory licenses to U.S. patents was required to sufficiently protect the interests of U.S.

    Filed under:
    USA, Virginia, Insolvency & Restructuring, Litigation, Patents, Haynes and Boone LLP, Bankruptcy, Samsung, Title 11 of the US Code, United States bankruptcy court
    Authors:
    Robin E. Phelan , Randall E. Colson , Andrew S. Ehmke , Autumn D. Highsmith
    Location:
    USA
    Firm:
    Haynes and Boone LLP
    Cross-affiliate netting provision in ISDA swap agreement is not enforceable against the debtor
    2011-12-19

    In re Lehman Brothers Inc., Bankr. Case No. 08-01420 (JMP) (SIPA), 2011 WL 4553015 (Bankr. S.D.N.Y. Oct. 4, 2011)  

    CASE SNAPSHOT

    Filed under:
    USA, Derivatives, Insolvency & Restructuring, Litigation, Reed Smith LLP, Bankruptcy, Debtor, Debt, UBS, International Swaps and Derivatives Association, Lehman Brothers, Title 11 of the US Code, United States bankruptcy court
    Authors:
    Brian M. Schenker
    Location:
    USA
    Firm:
    Reed Smith LLP
    Commercial restructuring & bankruptcy alert - Vol. VII, No. 4 (December 2011)
    2011-12-19

    The U.S. Supreme Court has agreed to settle the dispute as to whether secured creditors can credit bid in connection with asset sales done pursuant to liquidating plans. The Third Circuit in the Philadelphia Newspapers case and the Fifth Circuit in the Pacific Lumber case held that secured creditors do not have a statutory right to credit bid their debt at a sale conducted under a plan of reorganization pursuant to which the debtor elects to provide the secured creditors with the “indubitable equivalent” of their secured claim.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Reed Smith LLP, Debtor, Title 11 of the US Code
    Authors:
    Peter S. Clark, II
    Location:
    USA
    Firm:
    Reed Smith LLP
    New York Bankruptcy Court allows total cost method to calculate contractor’s inefficiency damages resulting from restaging of project
    2011-12-20

    GII Industries, Inc. v. New York Dep’t of Transp. 2011 Bankr. LEXIS 3663 (Bankr. E.D.N.Y. Sept. 30, 2011)  

    The Bankruptcy Court for the Eastern District of New York considered the appropriate method for calculating a contractor’s inefficiency damages and whether the contractor was entitled to prejudgment interest in connection with a highway reconstruction project. The Court held that the total cost method was the appropriate manner by which to calculate damages and that the contractor was entitled to prejudgment interest running from the date final payment was due.

    Filed under:
    USA, New York, Construction, Insolvency & Restructuring, Litigation, Troutman Pepper, Title 11 of the US Code
    Authors:
    Stephanie L. Jonaitis
    Location:
    USA
    Firm:
    Troutman Pepper
    Omega Navigation provides further test of a foreign debtor's access to the protection of the US bankruptcy courts
    2011-12-14

    In the course of the next few weeks, Omega Navigation Enterprises, Inc. and its affiliates (collectively, “Omega”), an international shipping enterprise, will find out if motions by certain of their lenders to, among other things, dismiss Omega’s chapter 11 bankruptcy proceedings have been granted by the U.S. Bankruptcy Court for the Southern District of Texas.1 If not, then Omega may be permitted to continue its attempt to reorganize its business under chapter 11 of the Bankruptcy Code.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Mayer Brown, Bankruptcy, Debtor, Title 11 of the US Code, United States bankruptcy court
    Authors:
    Alastair C. MacAulay , Stuart McAlpine , Ashley Katz , Frederick D. Hyman
    Location:
    USA
    Firm:
    Mayer Brown
    FDIC treatment of creditor claims under orderly liquidation process
    2011-12-19

    When a traditional nonbanking company files a case under the Bankruptcy Code, a judge is appointed to be the neutral arbiter of disputes that arise between the debtor and its creditors.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Reed Smith LLP, Standard of review, Liquidation, Judicial review, Federal Deposit Insurance Corporation (USA), Financial Stability Oversight Council, Title 11 of the US Code
    Authors:
    Robert P. Simons , Luke A. Sizemore
    Location:
    USA
    Firm:
    Reed Smith LLP
    U.S. Supreme Court to decide lenders' credit bidding rights
    2011-12-13

    From time immemorial, banks and other secured lenders have relied on their ability to "credit bid" for their collateral as a key source of protection and negotiating leverage against debtors and competing bankruptcy acquirors. Credit bidding secured debt rather than paying cash for collateral has been an effective counterweight against a debtor’s protections of the automatic stay and its exclusive right to control the plan formulation process and bankruptcy sales under Section 363 of the Bankruptcy Code.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Torys LLP, Credit (finance), Debtor, Collateral (finance), Secured loan, Title 11 of the US Code, Seventh Circuit
    Authors:
    Alison D. Bauer
    Location:
    USA
    Firm:
    Torys LLP
    No costs allowed to petitioner who challenged a sales tax assessment
    2011-12-05

    A New York State Administrative Law Judge has denied an application for costs and fees filed by a petitioner who had succeeded in substantially reducing the asserted tax liability through settlement. Matter of Frank M. Grillo, DTA No. 823237 (N.Y.S. Div. of Tax App., Nov. 3, 2011). The decision turned on whether the position of the Department of Taxation and Finance was substantially justified, and that, in turn, depended upon whether the Department had used the correct address when it sent the Notice of Determination to the petitioner.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Tax, Morrison & Foerster LLP, Title 11 of the US Code, Administrative law judge, Chief operating officer, United States bankruptcy court
    Authors:
    Hollis L. Hyans
    Location:
    USA
    Firm:
    Morrison & Foerster LLP
    Members beware! LLC members will be insiders for bankruptcy preference purposes
    2011-12-01

    In September 2011, in In re Longview Aluminum, LLC, 10-2780 (7th Cir. 2011), the Seventh Circuit Court of Appeals held that members of an LLC are insiders for preferential transfer purposes under the Bankruptcy Code. This is the case even if the member holds only a minority membership interest and is not actually in control of the enterprise.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Reinhart Boerner Van Deuren SC, Debtor, Limited liability company, Debt, Title 11 of the US Code, Seventh Circuit
    Authors:
    Peter C. Blain
    Location:
    USA
    Firm:
    Reinhart Boerner Van Deuren SC
    American Airlines files for bankruptcy
    2011-11-30

    Earlier today AMR Corporation, its subsidiary American Airlines, Inc., and 18 other affiliates ("Debtors") filed petitions under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Southern District of New York in Manhattan.1 The case was assigned to Bankruptcy Judge Sean H. Lane. The Debtors have asked the Court to consolidate all 20 cases for procedural purposes under the captionIn re: AMR Corporation, Case No. 11-15463.

    Filed under:
    USA, New York, Aviation, Insolvency & Restructuring, Litigation, Patterson Belknap Webb & Tyler LLP, Bankruptcy, American Airlines, Title 11 of the US Code, United States bankruptcy court
    Authors:
    David W. Dykhouse , Daniel A. Lowenthal
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP

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