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    Are Power Purchase and Similar Agreements Excluded from the Automatic Stay under the Safe Harbor for Forward Contracts? Recent US Utility Bankruptcies Raise This and Other Important Questions
    2019-02-27

    Both the First Energy Solutions and PG&E bankruptcies have seen proceedings regarding power purchase and similar agreements (PPAs) that raise this question.

    Background

    Contracts often contain provisions that enable a party to terminate or modify the contract based on the other party's bankruptcy filing, insolvency or deteriorating financial condition. In general, the Bankruptcy Code renders these types of provisions (sometimes referred to as "ipso facto" clauses) ineffective. Specifically, under section 365(e)(1) of the Bankruptcy Code (emphasis added):

    Filed under:
    USA, Derivatives, Insolvency & Restructuring, Litigation, Mayer Brown, Title 11 of the US Code, United States bankruptcy court
    Authors:
    J. Paul Forrester , Sean T. Scott
    Location:
    USA
    Firm:
    Mayer Brown
    Bankruptcy Code—Insider Status
    2017-03-27

    U.S. Bank N.A. v. Village at Lakeridge, LLC, No. 15-1509

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Mayer Brown
    Location:
    USA
    Firm:
    Mayer Brown
    Bankruptcy Code—disposition of funds held by Chapter 13 trustee after conversion to Chapter 7
    2015-05-18

    Harris v. Viegelahn, No. 14-400 (previously described in the December 15, 2014, Docket Report)

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Mayer Brown, Debtor, Trustee
    Authors:
    Brian Trust , Thomas S. Kiriakos
    Location:
    USA
    Firm:
    Mayer Brown
    New York Court of Appeals to consider vast expansion to Koehler: turnover of assets at a non-US subsidiary
    2012-10-03

    The US Court of Appeals for the Second Circuit recently certified to the New York Court of Appeals two questions concerning the ability of a judgment creditor to garnish accounts of judgment debtors at non-US subsidiaries of banks that have branches in New York or are otherwise subject to jurisdiction in New York.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Mayer Brown, Personal property, Subsidiary, Second Circuit, US District Court for SDNY
    Authors:
    Christopher J. Houpt
    Location:
    USA
    Firm:
    Mayer Brown
    Seventh Circuit upholds secured lenders’ right to credit bid in asset sales under a Chapter 11 plan
    2011-07-06

    The US Court of Appeals for the Seventh Circuit has weighed in on the question of whether a secured creditor’s ability to credit bid—to offset the amount of the creditor’s debt against the purchase price of sale assets rather than bid in cash—is a right guaranteed by statute even in “cramdown” plans of reorganization conducted under Chapter 11 of the Bankruptcy Code. On June 28, 2011, the court ruled in favor of secured creditors with its much anticipated decision in In re River Road Hotel Partners, LLC (River Road).1

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Mayer Brown, Bankruptcy, Credit (finance), Debtor, Collateral (finance), Debt, Fair market value, Secured creditor, Secured loan, Title 11 of the US Code, United States bankruptcy court, Seventh Circuit
    Authors:
    Brian Trust , Thomas S. Kiriakos
    Location:
    USA
    Firm:
    Mayer Brown
    Viability of guaranty “savings clauses” questioned by Florida bankruptcy court decision
    2009-12-02

    To promote equal treatment of creditors, the US Congress has armed debtors with the power to bring suit to recover a variety of pre-bankruptcy transfers. Prominent among these is a debtor’s ability under Section 548 of the Bankruptcy Code to recover constructively fraudulent transfers — i.e., transfers made without fair consideration when a debtor is insolvent.

    Filed under:
    USA, Florida, Insolvency & Restructuring, Litigation, Mayer Brown, Bankruptcy, Surety, Debtor, Collateral (finance), Fraud, Interest, Credit risk, Joint venture, Holding company, Subsidiary, Title 11 of the US Code, United States bankruptcy court
    Authors:
    Brian Trust , Sean T. Scott
    Location:
    USA
    Firm:
    Mayer Brown
    Siegel v. Fitzgerald: Supreme Court Rules U.S. Trustee Fee Hike Unconstitutional
    2022-07-07

    In its June 6, 2022 opinion in Siegel v. Fitzgerald, the United States Supreme Court resolved a circuit split and invalidated a 2017 statute that increased U.S. Trustee fees in 48 states—but not Alabama or North Carolina—as unconstitutional under the uniformity requirement of the Constitution’s Bankruptcy Clause. See Siegel v. Fitzgerald, 596 U.S. ___ (2022).

    U.S. Trustee Fees, a History

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Mayer Brown, US Department of Justice, SCOTUS
    Authors:
    Sean T. Scott
    Location:
    USA
    Firm:
    Mayer Brown
    Be Careful What You Wish For: Jevic Court Denies Chapter 7 Trustee’s Substitution Request, Potentially Ending Action Versus Prepetition Lenders
    2021-07-27

    Perhaps proving the maxim that people should be careful what they wish for, in a second significant ruling stemming from theJevic Holding Corp. bankruptcy case, on May 5, 2021, the US Bankruptcy Court for the District of Delaware found that Jevic’s Chapter 7 trustee, appointed following the conversion of the debtors’ cases from Chapter 11 to Chapter 7, did not have standing to continue claims originally brought against the debtors’ prepetition lenders by the Chapter 11 creditors’ committee.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Mayer Brown, SCOTUS
    Authors:
    Sean T. Scott , Aaron Gavant , Samuel R. Rabuck
    Location:
    USA
    Firm:
    Mayer Brown
    The NRA Bankruptcy: What You Need to Know About the National Rifle Association’s Recent Chapter 11 Filing
    2021-02-05

    The National Rifle Association (“NRA”), along with its wholly owned Texas subsidiary, filed for chapter 11 bankruptcy protection on January 15, 2021 in the Bankruptcy Court for the Northern District of Texas. The case already has presented several threshold issues and challenges that are of interest to both bankruptcy practitioners and the market as a whole.

    Background

    Filed under:
    USA, Texas, Insolvency & Restructuring, Litigation, Mayer Brown, Bankruptcy
    Authors:
    Youmi Kim , Aaron Gavant , Sean T. Scott , Matthew V. Wargin
    Location:
    USA
    Firm:
    Mayer Brown
    Second Circuit: Lehman Brothers “Flip Clause” Payments Are Protected Settlement Payments and Not Void as Ipso Facto Bankruptcy Provisions
    2020-08-11

    Almost 12 years after the commencement of the Lehman Brothers bankruptcy case, we now know the answer to one of that case’s most interesting questions—namely, whether so-called “flip clauses” are protected settlement payments or void as ipso facto bankruptcy provisions.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Mayer Brown, Title 11 of the US Code
    Location:
    USA
    Firm:
    Mayer Brown

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