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    Technology licenses upon bankruptcy
    2008-04-23

    Imagine that a critical part of your business is dependent on a software program that you license from a software supplier. This scenario is not that hard to imagine, because in fact most businesses and other organizations are indeed reliant on licensed software – it is simply a fact of life in the computer age.

    Filed under:
    Canada, USA, Insolvency & Restructuring, IT & Data Protection, Litigation, McCarthy Tétrault LLP, Bankruptcy, Debtor, Bankruptcy and Insolvency Act 1985 (Canada)
    Location:
    Canada, USA
    Firm:
    McCarthy Tétrault LLP
    Recent Trends in Corporate Debt and Reorganizations: Laying the Groundwork for Future Large Chapter 11 Cases or Just More Runway?
    2022-01-17

    WHITE PAPER Recent Trends in Corporate Debt and Reorganizations: Laying the Groundwork for Future Large Chapter 11 Cases or Just More Runway? After commercial Chapter 11 filings soared to their highest levels in more than a decade in 2020, the numbers gradually came back to Earth in the latter part of 2020 and, in 2021, fell well below annual averages. The primary driver of this reversal was twofold: swift and robust central bank intervention around the world and readily available and affordable capital from banks, private equity, and hedge funds.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Jones Day, Private equity, Supply chain, Coronavirus
    Location:
    USA
    Firm:
    Jones Day
    Secured Lender's Credit Bid Right in Bankruptcy Sale Denied
    2021-09-23

    A secured creditor's right to "credit bid" the amount of its allowed claim in a bankruptcy sale of its collateral is an important creditor protection codified in section 363(k) of the Bankruptcy Code. Even so, a ruling recently issued by the U.S.

    Filed under:
    USA, California, Insolvency & Restructuring, Litigation, Jones Day
    Authors:
    Jane Rue Wittstein , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Texas Bankruptcy Court Allows Make-Whole Premium as Liquidated Damages and Requires Solvent Chapter 11 Debtor to Pay Postpetition Interest
    2021-02-12

    On October 26, 2020, the U.S. Bankruptcy Court for the Southern District of Texas issued a long-awaited ruling on whether natural gas exploration and production company Ultra Petroleum Corp. ("UPC") must pay a make-whole premium to noteholders under its confirmed chapter 11 plan and whether the noteholders are entitled to postpetition interest on their claims pursuant to the "solvent-debtor exception." On remand from the U.S.

    Filed under:
    USA, Texas, Insolvency & Restructuring, Litigation, Jones Day, Fifth Circuit, US District Court for Southern District of Texas
    Authors:
    Brad B. Erens , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Creditors' Committee Denied Standing to Bring Derivative Claims on Behalf of LLC Debtor in Bankruptcy
    2020-10-14

    The practice of conferring "derivative standing" on official creditors' committees to assert claims on behalf of a bankruptcy estate in cases where the debtor or a bankruptcy trustee is unwilling or unable to do so is a well-established means of generating value for the estate from litigation recoveries. However, in a series of recent decisions, the Delaware bankruptcy courts have limited the practice in cases where applicable non-bankruptcy state law provides that creditors do not have standing to bring claims on behalf of certain entities.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Title 11 of the US Code
    Authors:
    Dan T. Moss , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Post-Merit, the Second Circuit Reaffirms Its Ruling That State Law Avoidance Claims Are Preempted by the Section 546(e) Safe Harbor
    2020-04-15

    In In re Tribune Co. Fraudulent Conveyance Litig., 946 F.3d 66 (2d Cir. 2019), the U.S. Court of Appeals for the Second Circuit reaffirmed, notwithstanding the U.S. Supreme Court's ruling in Merit Mgmt. Grp., LP v. FTI Consulting, Inc., 138 S. Ct. 883, 200 L. Ed. 2d 183 (2018), its 2016 decision that creditors' state law fraudulent transfer claims arising from the 2007 leveraged buyout ("LBO") of Tribune Co. ("Tribune") were preempted by the safe harbor for certain securities, commodities, or forward contract payments set forth in section 546(e) of the Bankruptcy Code.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, Jones Day, Title 11 of the US Code, US House of Representatives, SCOTUS
    Authors:
    Mark G. Douglas , Brad B. Erens
    Location:
    USA
    Firm:
    Jones Day
    Presumption of Filed Claim's Validity and Amount Does Not Apply in Proceeding to Determine Secured Amount of Claim
    2019-09-23

    The Bankruptcy Code creates a rebuttable presumption that a proof of claim is prima facie evidence of the claim's validity and amount. Courts disagree, however, over whether that presumption also applies in a proceeding to determine the secured amount of the creditor's claim. The U.S. Bankruptcy Court for the Eastern District of California weighed in on this issue in In re Bassett, 2019 WL 993302 (Bankr. E.D. Cal. Feb. 26, 2019).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Title 11 of the US Code, United States bankruptcy court
    Authors:
    Mark G. Douglas , Paul M. Green
    Location:
    USA
    Firm:
    Jones Day
    The Year in Bankruptcy: 2018
    2019-02-26

    Rumors of another recession multiplied as the tumultuous second year of the Trump administration came to a close. Highlights of 2018 included a simmering trade war with China; political upheaval after the House of Representatives was retaken by Democrats in the midterm elections; mayhem in financial markets; and, in December, the beginning of the longest government shutdown in U.S. history, triggered by lawmakers’ refusal to provide $5.7 billion in funding for a U.S.-Mexican border wall.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Jones Day
    Authors:
    Charles M. Oellermann , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Patently Abusive Chapter 11 Cases Filed by Non-Financially Distressed Companies Dismissed for Bad Faith
    2018-06-08

    In the service of the Bankruptcy Code’s goals of giving debtors a "fresh start" and ensuring that estate assets are fairly and equally distributed among similarly situated creditors, the Bankruptcy Code contains an array of advantageous provisions that either do not exist under non-bankruptcy law or are more difficult to deploy. These include, among other things, the ability to reject burdensome contracts, to avoid preferential or fraudulent transfers, and to limit the amount of certain types of creditor claims.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day
    Authors:
    Jane Rue Wittstein , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    To Have and to Hold: Third Circuit Rules That Physical Possession of Goods Is Required Under Section 503(b)(9) of the Bankruptcy Code
    2017-11-22

    Since its enactment as part of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, section 503(b)(9) of the Bankruptcy Code has provided an important safety net for creditors selling goods to financially struggling companies that file for bankruptcy. The provision gives vendors an administrative expense priority claim for the value of goods "received by the debtor" during the 20-day period before the bankruptcy petition date. The U.S.

    Filed under:
    USA, Company & Commercial, Insolvency & Restructuring, Litigation, Jones Day
    Location:
    USA
    Firm:
    Jones Day

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