On April 8, 2015, we distributed a Corporate Alert outlining two important decisions of the US District Court for the Southern District of New York and their potential effects on future debt exchange offers.1 Since then, the Education Management court has issued a final ruling on the following question, as stated by the court in its most recent decision: “does a debt restructuring violate Section 316(b) of the Trust Indenture Act (the Act) when it does not modify any indenture term explicitly governing the right to receive interest or principal on

“[T]hey would sell their possessions and goods and distribute the proceeds to all…” Acts 2:45

The RadioShack bankruptcy case has already drawn the attention of both state and federal regulators for potential privacy violations, and now the company faces a new issue: $43 million worth of unused gift cards.

Texas Attorney General Ken Paxton launched an adversary proceeding in the bankruptcy case seeking a declaratory judgment that any unused gift cards should receive priority up to $2,775 per card under Bankruptcy Code Section 507(a)(7). RadioShack gift cards did not expire and the face of the cards did not disclose an expiration date, the AG told the court.

The claim of an insider lender (“L”) who invested “in a venture with substantial risk” and who loaned it additional funds on a secured basis to salvage its business should not be recharacterized as equity or subordinated on equitable grounds, held the U.S. Court of Appeals for the Tenth Circuit on June 12, 2015. In re Alternate Fuels, Inc., 2015 WL 3635366 (10th Cir. June 12, 2015) (2-1) (“AFI”).

Last month, the Supreme Court announced its decision in Baker Botts LLP v. Asarco LLC. As most readers will be aware, that case involved a dispute over whether debtor’s retained counsel could be compensated for the fees and expenses incurred in the defense of its bankruptcy fee application.

“Our basic point of reference when considering the award of attorney’s fees is the bedrock principle known as the American Rule: Each litigant pays his own attorney’s fees, win or lose, unless a statute or contract provides otherwise,” wrote Clarence Thomas for the majority in last month’s United States Supreme Court decision in Baker Botts L.L.P. et al. v. Asarco LLC, 2015 U.S. LEXIS 3920, 83 U.S.L.W. 4428 (June 15, 2015).

One of the primary business restructuring goals is the adjustment of a company’s burdensome obligations.  If a business is going to be reorganized, matching a company’s obligations to its value is key to the rehabilitation and “fresh start” concepts that underpin the Bankruptcy Code.

The Equitable Mootness Doctrine

On June 15, 2015, the US Supreme Court ruled that a law firm could not recover fees it incurred in defending its own fee application.

THE ASARCO CASE

The case involved the copper company ASARCO LLC that filed for Chapter 11 protection in 2005 to deal with cash flow and environmental issues, among others.

When a bankruptcy court ‘‘recharacterizes’’ debt, it causes something the parties have identified as debt to be converted into equity. Unlike an equitable subordination analysis, in which courts determine whether an acknowledged claim should be subordinated to that of other creditors due to a creditor’s inequitable conduct, a recharacterization analysis involves determining whether a debt actually exists.