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    Lessees Left in Limbo
    2017-08-03

    Do a lessee’s possessory interests in real property survive a “free and clear” sale of the property under section 363 of the Bankruptcy Code? In a recent decision, the Ninth Circuit Court of Appeals said “no,” holding that section 365(h) did not protect the interest of the lessee in the context of a section 363 sale when there had been no prior formal rejection of the lease under section 365.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Squire Patton Boggs, Bankruptcy, Leasehold estate, Debtor in possession, United States bankruptcy court, Trustee
    Authors:
    Kate Thomas
    Location:
    USA
    Firm:
    Squire Patton Boggs
    Fourth Circuit holds that chapter 7 trustees are entitled to commission-based payments in the absence of extraordinary circumstances
    2014-06-06

    Professional compensation is often a contentious issue in bankruptcy, as we have previously discussed.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, Title 11 of the US Code, United States bankruptcy court, Fourth Circuit, Trustee
    Location:
    USA
    Firm:
    Weil Gotshal & Manges LLP
    Bankruptcy asset sale not so “free and clear” after all
    2011-08-10

    The ability to sell an asset in bankruptcy free and clear of liens and any other competing “interest” is a well-recognized tool available to a trustee or chapter 11 debtor in possession (“DIP”). Whether the category of “interests” encompassed by that power extends to potential successor liability claims, however, has been the subject of considerable debate in the courts. A New York bankruptcy court recently addressed this controversial issue in Olson v. Frederico (In re Grumman Olson Indus., Inc.), 445 B.R. 243(Bankr. S.D.N.Y. 2011).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Contractual term, Environmental remediation, Bankruptcy, Debtor, Statutory interpretation, Interest, Liability (financial accounting), Liquidation, Good faith, Debtor in possession, In rem jurisdiction, Bankruptcy discharge, Title 11 of the US Code, United States bankruptcy court, US District Court for SDNY, Trustee
    Authors:
    Lauren M. Buonome
    Location:
    USA
    Firm:
    Jones Day
    Section 503(b) not exclusive authority for payment of creditor fees and expenses in Chapter 11
    2011-06-03

    Section 503(b) of the Bankruptcy Code delineates categories of claims that are entitled to elevated priority as “administrative expenses.” Under section 503(b)(3)(D), administrative expenses include “actual, necessary expenses” incurred by a creditor, indenture trustee, equity holder, or unofficial committee “in making a substantial contribution” in a chapter 11 case.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Costs in English law, Debtor, Debtor in possession, Title 11 of the US Code, Comcast, United States bankruptcy court, Trustee
    Authors:
    Nancy J. Lu
    Location:
    USA
    Firm:
    Jones Day
    Bankruptcy claims traders beware: ensure that the cure comes with the claim
    2011-06-01

    Over the past five years, courts have issued rulings of potential concern to buyers of distressed debt. Courts have addressed, among other things, “loan to own” acquisition strategies resulting in vote designation; equitable subordination, disallowance, and other lender liability exposure based upon the claim seller’s misconduct; disclosure requirements for ad hoc committees of debtholders; the adequacy of standardized claims-trading agreements; and claim-filing requirements in the era of computerized records.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Debtor, Unsecured debt, Breach of contract, Interest, Holding company, Default (finance), Business judgement rule, Debtor in possession, Distressed securities, Title 11 of the US Code, United States bankruptcy court, Seventh Circuit, Trustee
    Authors:
    Scott J. Friedman , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    The U.K. Pensions Regulator – will its powers be limited?
    2011-04-01

    Ever since the establishment of the U.K. Pensions Regulator (the "Regulator") by the U.K. Pensions Act 2004 (the "Act"), the Regulator's exercise of its authority has been of major importance to the U.K.'s restructuring and rescue business. The first judicial review of the Regulator's powers, however, hints that some of the procedures it has adopted may be curbed in the future.

    The Pensions Regulator and the Restructuring Environment

    Filed under:
    United Kingdom, USA, Employee Benefits & Pensions, Insolvency & Restructuring, Jones Day, Shareholder, Liability (financial accounting), Holding company, Judicial review, Unsecured creditor, Pensions Act 2004 (UK), The Pensions Regulator, Trustee
    Location:
    United Kingdom, USA
    Firm:
    Jones Day
    New U.S. Supreme Court rulings
    2010-08-11

    When a bankruptcy court calculates the "projected disposable income" in a repayment plan proposed by an above-median-income chapter 13 debtor, the court may "account for changes in the debtor's income or expenses that are known or virtually certain at the time of confirmation," the U.S. Supreme Court held in Hamilton v. Lanning on June 7. Writing for the 8-1 majority, Justice Samuel A.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Tax exemption, Bankruptcy, Debtor, Interest, Personal property, Dissenting opinion, Majority opinion, Title 11 of the US Code, SCOTUS, Ninth Circuit, United States bankruptcy court, Trustee
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Collateral surcharge denied despite inadequacy of carve-out due to express waiver in DIP financing agreement
    2008-08-01

    As a general rule, absent an express agreement to the contrary, expenses associated with administering the bankruptcy estate, including pledged assets, are not chargeable to a secured creditor’s collateral or claim but must be paid out of the estate’s unencumbered assets. Recognizing, however, that the bankruptcy estate may be called upon to bear significant expense in connection with preserving or disposing of encumbered assets as part of an overall reorganization (or liquidation) strategy, U.S.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Debtor, Collateral (finance), Waiver, Property tax, Limited liability company, Foreclosure, Condominium, Liquidation, Secured creditor, Ninth Circuit, United States bankruptcy court, Trustee
    Location:
    USA
    Firm:
    Jones Day
    Can an executory contract lose its executoriness? "Maybe," says the Second Circuit
    2008-08-01

    The ability of a chapter 11 debtor-in-possession (“DIP”) or bankruptcy trustee to assume or reject unexpired leases or contracts that are “executory” as of the bankruptcy filing date is one of the most important entitlements created by the Bankruptcy Code. It allows a DIP to rid itself of onerous contracts and to preserve contracts that can either benefit its reorganized business or be assigned to generate value for the bankruptcy estate and/or fund distributions to creditors under a chapter 11 plan.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Jones Day, Bankruptcy, Debtor, Breach of contract, Employment contract, Second Circuit, United States bankruptcy court, Trustee
    Location:
    USA
    Firm:
    Jones Day
    Refusal to participate in confirmation process dooms bid for stay of order confirming chapter 11 plan
    2008-04-22

    One of the hallmarks of chapter 11, and bankruptcy jurisprudence in general in the U.S., is the fundamental right of creditors and other stakeholders to have a meaningful voice in the proceedings concerning matters that affect their economic interests.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Debtor, Collateral (finance), Stakeholder (corporate), Trustee
    Location:
    USA
    Firm:
    Jones Day

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