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    Do you have to sell to an insolvent purchaser?
    2008-06-30

    Given the state of the economy, it will not be a rare occurrence in the short term for a supplier to receive a request to sell and deliver further goods to a purchaser who has filed proceedings under the Companies Creditors Arrangement Act (CCAA) or Chapter 11 of the United States Bankruptcy Code — and who is already indebted for unpaid pre-filing sales.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, McCarthy Tétrault LLP, Bankruptcy, Credit (finance), Debtor, Unsecured debt, Injunction, Debt, Supply chain, Precondition, Default (finance), United States bankruptcy court, Seventh Circuit
    Location:
    USA
    Firm:
    McCarthy Tétrault LLP
    The Year in Bankruptcy: 2021
    2022-01-14

    One year ago, we wrote that, unlike in 2019, when the large business bankruptcy landscape was generally shaped by economic, market, and leverage factors, the COVID-19 pandemic dominated the narrative in 2020. The pandemic may not have been responsible for every reversal of corporate fortune in 2020, but it weighed heavily on the scale, particularly for companies in the energy, retail, restaurant, entertainment, health care, travel, and hospitality industries.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Private equity, Supply chain, Coronavirus, CARES Act 2020 (USA)
    Authors:
    Charles M. Oellermann , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    In Brief: U.S. Supreme Court Declines Review of High-Profile Bankruptcy Rulings
    2021-07-29

    Madoff

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, SCOTUS, Second Circuit
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    DIP Financing Agreement Initially Rejected as Sub Rosa Chapter 11 Plan
    2020-12-11

    Postpetition financing provided by pre-bankruptcy shareholders or other "insiders" is not uncommon in chapter 11 cases as a way to fund a plan of reorganization and allow old shareholders to retain an ownership interest in the reorganized entity. The practice is typically sanctioned by bankruptcy courts under an exception—the "new value" exception—to the "absolute priority rule," which prohibits shareholders and junior creditors from receiving any distribution under a plan on account of their interests or claims unless senior creditors are paid in full or agree otherwise.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Libor, Due diligence, Coronavirus
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    FDIC, SEC Adopt Rule on Orderly Liquidation of Large Broker-Dealers Under Title II of Dodd-Frank
    2020-08-27

    In Short

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Jones Day, Dodd-Frank Wall Street Reform and Consumer Protection Act 2010 (USA), US Securities and Exchange Commission, Federal Deposit Insurance Corporation (USA)
    Location:
    USA
    Firm:
    Jones Day
    In Brief: Fifth Circuit Vacates Ruling that Make-Whole Premium Is Disallowed Unmatured Interest but Holds Firm on Bankruptcy Code v. Chapter 11 Plan Impairment
    2020-02-15

    In the July/August 2019 issue of the Business Restructuring Review, we discussed a landmark decision by the U.S. Court of Appeals for the Fifth Circuit in In re Ultra Petroleum Corp., 913 F.3d 533(5th Cir. 2019) ("Ultra I").

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Fifth Circuit, U.S. Court of Appeals
    Authors:
    Brad B. Erens , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Seventh Circuit: Section 363(m) Does Not Moot but Instead Provides a Defense to an Appeal of an Unstayed Bankruptcy Asset Sale Order
    2019-08-19

    In Trinity 83 Dev., LLC v. ColFin Midwest Funding, LLC, 917 F.3d 599 (7th Cir. 2019), the U.S. Court of Appeals for the Seventh Circuit held that section 363(m) of the Bankruptcy Code does not moot an appeal involving a dispute over the proceeds of a sale of assets in bankruptcy. In concluding that section 363(m) does not moot such an appeal, but merely provides the purchaser with a defense in litigation challenging the sale, the Seventh Circuit overruled its prior decision on the scope of section 363(m) in In re River West Plaza-Chicago, LLC, 664 F.3d 668 (7th Cir.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Debtor, Title 11 of the US Code, Seventh Circuit, U.S. Court of Appeals
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Fifth Circuit Suggests Claims for Make-Whole Amounts Should Be Disallowed
    2019-01-29

    The Situation On January 17, 2019, the Fifth Circuit strongly suggested that claims for make-whole damages be characterized as "unmatured interest" and that claims for postpetition interest on unsecured debt be limited in bankruptcy proceedings.

    The Result The court's decision appears to be one that favors debtors over lenders.

    Looking Ahead It is unclear if the court's reasoning will be adopted by other jurisdictions and/or in cases with differing factual and legal grounds.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Unsecured debt, Fifth Circuit
    Authors:
    Bruce Bennett , Jeffrey B. Ellman (Jeff)
    Location:
    USA
    Firm:
    Jones Day
    U.S. Supreme Court Narrows Scope of Section 546(e)’s Safe Harbor for Securities Transaction Payments
    2018-04-17

    On February 27, 2018, the U.S. Supreme Court issued a highly anticipated ruling resolving a long-standing circuit split over the scope of the Bankruptcy Code’s "safe harbor" provision exempting certain securities transaction payments from avoidance as fraudulent transfers. In Merit Management Group LP v. FTI Consulting Inc., 2018 BL 65569, No. 16-784 (U.S. Feb.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, SCOTUS, Eleventh Circuit, Seventh Circuit
    Authors:
    Brad B. Erens , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Bankruptcy Court Rules "Make-Whole" Provision Creates Enforceable Liquidated Damages
    2017-10-12

    In Short

    The Situation: After a ruling in In re Ultra Petroleum Corp. by the U.S. Bankruptcy Court for the Southern District of Texas, certain private-placement noteholders are entitled to a "make-whole" premium in excess of $200 million, under a chapter 11 plan that had rendered the noteholders' claims unimpaired.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Liquidated damages
    Authors:
    Brad B. Erens , Timothy Hoffmann , Thomas A. Howley
    Location:
    USA
    Firm:
    Jones Day

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