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    Supreme Court to Hear Circuit Split Over Bankruptcy Safe Harbor Provision
    2017-05-30

    The Supreme Court has granted certiorari in Merit Management Group L.P. v. FTI Consulting Inc. to resolve a circuit split over the interpretation of Section 546(e) of the Bankruptcy Code, the “safe harbor” provision that shields specified types of payments “made by or to (or for the benefit of)” a financial institution from avoidance on fraudulent transfer grounds.

    Filed under:
    USA, Banking, Capital Markets, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Title 11 of the US Code, Eighth Circuit, SCOTUS, Eleventh Circuit, Sixth Circuit, Seventh Circuit, Tenth Circuit
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel 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, Second Circuit, Trustee
    Authors:
    David E. Blabey, Jr
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Navigating Lehman II’s Reach: Means of Payment of Indenture Trustee Fees Under Chapter 11 Plans
    2017-02-28

    By now, both indenture trustees and offices of the U.S. Trustee around the country are undoubtedly familiar with the Southern District of New York’s 2014 opinion in the case of In re Lehman Brothers Holdings, Inc., 508 B.R. 283 (S.D.N.Y. 2014) (Lehman II), finding that individual committee members must establish a “substantial contribution” to the case under Section 503 of the Bankruptcy Code before the payment of their fees will be approved as part of a Chapter 11 plan. In the years since the Lehman II decision, however, U.S.

    Filed under:
    USA, New York, Banking, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Title 11 of the US Code, Lehman Brothers, US District Court for SDNY
    Authors:
    Douglas Mannal , Rachael Ringer
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Tenth Circuit Holds the Doctrine of Equitable Mootness Applies to Liquidating Plans
    2020-08-18

    The Bottom Line

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Title 11 of the US Code, Tenth Circuit
    Authors:
    Benjamin S. Sieck
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Use of Tender Offers in Bankruptcy to Effect a Pre-confirmation Settlement
    2016-08-16

    The Third Circuit recently affirmed that a debtor in Chapter 11 can use a tender offer to settle claims without running afoul of the Bankruptcy Code. Although In re Energy Future Holdings Corp.is limited to its particular facts and circumstances, the decision could lead to increased use of tender offers prior to confirmation of a bankruptcy plan.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Bankruptcy, Debtor, Interest, Debt, Maturity (finance), Leveraged buyout, Tender offer, Accrued interest, Secured loan, Title 11 of the US Code, United States bankruptcy court, Third Circuit
    Authors:
    John Bessonette , Nathan Hyman
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Bankruptcy Courts Authorize Debtors to Defer Post-Petition Rent Payments Amid COVID-19 Store Closures
    2020-05-20

    Historically, the interests of landlords whose commercial real estate is occupied by debtors in Chapter 11 proceedings have been generally well protected. Indeed, Section 365(d)(3) of the Bankruptcy Code requires the debtor to timely perform all of its post-petition obligations under its nonresidential leases of real property — most important among those, rent.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Kramer Levin Naftalis & Frankel LLP, Landlord, Force majeure, Coronavirus, Title 11 of the US Code
    Authors:
    Daniel M. Eggermann , Adam C. Rogoff , Nancy M. Bello
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Enforceability of Subordination Provisions in Synthetic CDOs - Lehman Revisited
    2016-08-16

    On June 28, 2016, Judge Chapman of the U.S. Bankruptcy Court for the Southern District of New York ruled in Lehman Brothers Special Financing Inc. v. Bank of America National Association, et al.(Adv. Proc. No. 10-03547 (Bankr. S.D.N.Y.

    Filed under:
    USA, Derivatives, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Bankruptcy, Surety, Collateral (finance), Swap (finance), Liquidation, Default (finance), Collateralized debt obligation, Title 11 of the US Code, Bank of America, International Swaps and Derivatives Association, Lehman Brothers, United States bankruptcy court, US District Court for SDNY
    Authors:
    Fabien Carruzzo
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Eighth Circuit Rules Fraudulent Conveyances Subject to Statutory 502(b)(6) Cap
    2020-05-13

    The Bottom Line

    In Lariat Cos. v. Wigley(In re Wigley), Case No. 18-3489 (8th Cir. March 9, 2020), the Eighth Circuit held that a claim against Debtor B that arose out of a fraudulent transfer made by Debtor A to Debtor B was subject to the statutory cap applicable to lease rejection damages where Debtor A’s underlying liability was premised on its breach of a lease.

    What Happened?

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Kramer Levin Naftalis & Frankel LLP, Title 11 of the US Code, Eighth Circuit
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    No Turnover of the Make-whole Amount in the EFH Bankruptcy
    2016-08-16

    In a pair of decisions in 2015, the United States Bankruptcy Court of the District of Delaware determined that neither the first lien notes trustee nor the second lien notes trustee of Energy Future Intermediate Holdings Corp. (“EFIH”), a subsidiary of Energy Future Holdings (“EFH”), was entitled to receive a make-whole on the repayment of the corresponding indebtedness resulting from the acceleration of that debt in the EFH bankruptcy case.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Bankruptcy, Collateral (finance), Interest, Debt, Liquidation, Title 11 of the US Code, United States bankruptcy court, Third Circuit, US District Court for District of Delaware, Trustee
    Authors:
    Jennifer R. Sharret
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    District Court Bars Assignment by Sears, Provision in Lease Cannot Supersede §365(b)(3)(A)
    2020-05-01

    The Bottom Line

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Real Estate, Kramer Levin Naftalis & Frankel LLP, Title 11 of the US Code, US District Court for SDNY
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP

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