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    Risky business: selling to a potentially insolvent customer
    2015-05-26

    Extending credit to a financially shaky customer is risky. When the customer files a chapter 11 bankruptcy case and continues to operate, the risks multiply. Properly understood, some of the inherent risks can be reduced.

    Filed under:
    USA, Insolvency & Restructuring, Kegler Brown Hill + Ritter
    Authors:
    Larry J. McClatchey
    Location:
    USA
    Firm:
    Kegler Brown Hill + Ritter
    Bankruptcy court holds that prepayment of a liability does not preclude recovery of the payment as a preferential transfer
    2007-05-14

    In Official Committee of Unsecured Creditors v. Whalen (In re Enron Corp.), the Bankruptcy Court for the Southern District of New York considered whether the debtor’s pre-bankruptcy payment of an employment bonus one day before it became due was “for or on account of an antecedent debt owed by the debtor before such transfer was made” for purposes of determining whether section 547(b) of the Bankruptcy Code made the payment avoidable as a preferential transfer.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White & Case, Bankruptcy, Debtor, Interest, Employment contract, Debt, Liability (financial accounting), Enron, Title 11 of the US Code, United States bankruptcy court
    Location:
    USA
    Firm:
    White & Case
    The Ninth Circuit rules on plan feasibility
    2007-04-26

    In the case of Sherman v. Harbin (In re Harbin), the Ninth Circuit decided that in determining the feasibility of a plan under Bankruptcy Code Section 1129(a)(11), a court must evaluate the possible impact of pending litigation, whether at the trial level or on appeal.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Sheppard Mullin Richter & Hampton LLP, Bankruptcy, Dissenting opinion, Ninth Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Sheppard Mullin Richter & Hampton LLP
    Can one member of a lending syndicate enforce remedies under a loan agreement? Surprisingly, the New York Court of Appeals says “no”
    2007-04-17

    In a significant and somewhat surprising decision, the New York Court of Appeals recently held that, absent an express provision to the contrary, an individual lender in a syndicated loan is prohibited from enforcing its rights under the loan agreement or a related guaranty.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Surety, Consideration, Debt, Default (finance), Casino, Parent company, New York Supreme Court
    Location:
    USA
    Firm:
    Paul, Weiss, Rifkind, Wharton & Garrison LLP
    Bankruptcy Court denies approval of Adelphia policy buyback settlement
    2007-04-16

    The United States Bankruptcy Court for the Southern District of New York has denied approval of a settlement between Adelphia and its D&O insurers pursuant to which the insurers would have bought back their interests in the relevant policies issued to Adelphia for $32.5 million "with claims of others to policy proceeds...attaching to the proceeds of the sale."

    Filed under:
    USA, Insolvency & Restructuring, Insurance, Litigation, Wiley Rein LLP, Bankruptcy, Conflict of laws, Debtor, Injunction, Warranty, Prejudice, Second Circuit, United States bankruptcy court, US District Court for Eastern District of Pennsylvania
    Location:
    USA
    Firm:
    Wiley Rein LLP
    Insurers have standing to object to Skinner reorganization plan; insurers’ motion to dismiss case denied
    2007-05-25

    The district court in Hartford Accident & Indemnity Company, et al. v. American Capital Equipment, et al., No. 06-0891 (U.S. Dist. Ct. W.D. Pa. May 11, 2007), affirmed that Skinner Engine Company's insurers have standing to move to dismiss Skinner's chapter 11 bankruptcy case and to challenge its bankruptcy plan. However, the court also affirmed the bankruptcy court's denial of the insurers' motion to dismiss the bankruptcy case.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Wiley Rein LLP, Bankruptcy, Debtor, Standing (law), Good faith, Involuntary dismissal, US Constitution, United States bankruptcy court
    Location:
    USA
    Firm:
    Wiley Rein LLP
    Grant of nonexclusive trademark license bars chapter 11 franchisee’s assumption of franchise agreement
    2007-05-25

    In a case of apparent first impression, U.S. District Court Judge Alan S. Gold recently held in In re Wellington Vision, Inc., No. 06-80446, __ B.R. ___, 2007 WL 762398 (S.D. Fla. Feb. 20, 2007), that a franchisee in chapter 11 cannot assume (i.e., retain) a franchise agreement that grants a nonexclusive trademark license, leaving the franchisor free to terminate the agreement.

    Filed under:
    USA, Franchising, Insolvency & Restructuring, Intellectual Property, Litigation, Wiley Rein LLP, Bankruptcy, Conflict of laws, Debtor, Marketing, Franchise agreement, Debtor in possession, Lanham Act 1946 (USA), Ninth Circuit, United States bankruptcy court, California courts of appeal
    Location:
    USA
    Firm:
    Wiley Rein LLP
    Can creditors directly sue company directors for breaches of fiduciary duties? The Delaware Supreme Court says “no”
    2007-05-25

    In a groundbreaking, and somewhat surprising decision, the Delaware Supreme Court recently held that creditors of a company that is either in the zone of insolvency or actually insolvent cannot, as a matter of law, directly sue directors of the company for breaches of the directors’ fiduciary duties.

    Filed under:
    USA, Company & Commercial, Insolvency & Restructuring, Litigation, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Bankruptcy, Shareholder, Breach of contract, Fraud, Fiduciary, Board of directors, Accounting, Tortious interference, Personal jurisdiction, Commercial law, Federal Communications Commission (USA), Goldman Sachs, Delaware General Corporation Law, Court of Chancery, Delaware Supreme Court
    Location:
    USA
    Firm:
    Paul, Weiss, Rifkind, Wharton & Garrison LLP
    United States Supreme Court agrees to hear appeal by Klein & Co. Futures, Inc
    2007-05-21

    New York, NY – May 21, 2007- On May 21, 2007, the United States Supreme Court agreed to review a decision by the United States Court of Appeals for the Second Circuit that Klein & Co. Futures, Inc., a futures commission merchant, lacked standing under the private remedy provisions of the Commodity Exchange Act to bring a suit for damages against a board of trade and its subsidiaries for failure to enforce rules to prevent a manipulation scheme that led to Klein & Co.’s collapse (Klein & Co. Futures Inc. v. Board of Trade of City of New York, U.S., No.

    Filed under:
    USA, Derivatives, Insolvency & Restructuring, Litigation, Day Pitney LLP, Futures contract, Commodity broker, Standing (law), Subsidiary, Commodity Exchange Act 1936 (USA), Supreme Court of the United States, Second Circuit
    Location:
    USA
    Firm:
    Day Pitney LLP
    Congoleum bankruptcy court refuses to approve insurer settlement
    2007-05-17

    In the ongoing bankruptcy action involving the Congoleum Corporation (Congoleum), the bankruptcy court refused to approve a settlement and policy buyback between Congoleum and one of its insurers, ruling that the lack of creditor support for the settlement and the lack of evidence regarding the volume and type of claims covered by the settlement precluded the court's ability to approve the settlement. In re Congoleum Corporation, No. 03-51524 (Bankr. D.N.J. May 11, 2004).

    Filed under:
    USA, Insolvency & Restructuring, Insurance, Litigation, Wiley Rein LLP, Bankruptcy, Legal burden of proof, Good faith, Collusion, United States bankruptcy court
    Location:
    USA
    Firm:
    Wiley Rein LLP

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