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    Delaware Bankruptcy Court: No Implied Assumption of Executory Contracts in Bankruptcy
    2022-01-14

    The ability of a bankruptcy trustee or chapter 11 debtor-in-possession ("DIP") to assume, assume and assign, or reject executory contracts and unexpired leases is an important tool designed to promote a "fresh start" for debtors and to maximize the value of the bankruptcy estate for the benefit of all stakeholders. However, the Bankruptcy Code and the Federal Rules of Bankruptcy Procedure ("Bankruptcy Rules") establish strict requirements for the assumption, assignment, and rejection of contracts and leases. The U.S.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Jones Day, Medicare
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Setoffs Under Shari'a-Compliant Investment Contracts Not Safe Harbored in Bankruptcy
    2021-07-29

    In In re Arcapita Bank B.S.C., 2021 WL 1603608 (Bankr. S.D.N.Y. Apr. 23, 2021), the U.S. Bankruptcy Court for the Southern District of New York addressed the interaction between purported setoff rights arising under investment agreements governed by Islamic law and the Bankruptcy Code's safe harbors protecting the exercise of non-debtors' rights under financial contracts.

    Filed under:
    USA, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Jones Day, SCOTUS
    Authors:
    Daniel J. Merrett (Dan) , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Tenth Circuit BAP: Bankruptcy Courts Have Exclusive Jurisdiction to Determine Whether Claims Are Estate Property
    2020-12-11

    In Hafen v. Adams (In re Hafen), 616 B.R. 570 (B.A.P. 10th Cir. 2020), a bankruptcy appellate panel from the Tenth Circuit ("BAP") held that the bankruptcy court is the only court with subject-matter jurisdiction to decide whether a claim or cause of action is property of a debtors' bankruptcy estate. As a consequence, the BAP held that the bankruptcy court abused its discretion by permitting a state court to determine whether creditors had "standing" to sue third-party recipients of allegedly fraudulent transfers.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Tenth Circuit
    Authors:
    Timothy Hoffmann , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Bolstering the Majority Rule: Bankruptcy Court Holds that Adjudication of Avoidance Liability Is Prerequisite to Disallowance of Transferee's Claim Under Section 502(d)
    2020-08-13

    The U.S. Bankruptcy Court for the Eastern District of North Carolina recently added some weight to the majority rule on an issue that has long divided bankruptcy and appellate courts. In In re Southern Produce Distributors, Inc., 2020 WL 1228719 (Bankr. E.D.N.C. Mar.

    Filed under:
    USA, North Carolina, Insolvency & Restructuring, Litigation, Jones Day, Title 11 of the US Code
    Authors:
    Daniel J. Merrett (Dan) , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Stay Extended to Bar Litigation Against Chapter 15 Foreign Representatives but No Ruling on Extraterritoriality of Barton Doctrine
    2020-02-15

    In McKillen v. Wallace (In re Irish Bank Resolution Corp. Ltd.), 2019 WL 4740249 (D. Del. Sept. 27, 2019), the U.S. District Court for the District of Delaware had an opportunity to consider, as an apparent matter of first impression, whether the U.S. common law "Barton Doctrine" applies extraterritorially. One of the issues considered by the district court on appeal was whether parties attempting to sue a foreign representative in a chapter 15 case must first obtain permission to sue from the foreign court that appointed the foreign representative.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, US House of Representatives
    Authors:
    Dan T. Moss , Mark G. Douglas
    Location:
    Ireland, USA
    Firm:
    Jones Day
    The Fifth Circuit Rules That a Make-Whole Premium Is Unmatured Interest Generally Disallowed in Bankruptcy
    2019-08-19

    In In re Ultra Petroleum Corp., 913 F.3d 533 (5th Cir. 2019), the U.S. Court of Appeals for the Fifth Circuit ruled that a "make-whole," or "prepayment," premium owed on unsecured notes issued by a chapter 11 debtor constituted unmatured interest disallowed by section 502(b)(2) of the Bankruptcy Code. The ruling represents a landmark decision on the allowance of such premiums in chapter 11, over which there has been considerable litigation in recent years, including at the circuit court level.

    Enforceability of Make-Whole Premiums in Bankruptcy

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Debtor, Title 11 of the US Code, Fifth Circuit
    Authors:
    Brad B. Erens , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Short-Squeeze Risks Loom Again in CDS Markets
    2019-01-11

    In Short:

    The Situation: Fears of a potential short-squeeze in the upcoming Sears CDS auction have kicked off disputes in a variety of venues.

    The Result: One of these disputes caused the fourth-ever convening of an ISDA CDS Determinations Committee external review panel and another made its way before the Sears bankruptcy court.

    Filed under:
    USA, Derivatives, Insolvency & Restructuring, Jones Day, Credit default swap, International Swaps and Derivatives Association
    Authors:
    George J. Cahill , Jayant W. Tambe
    Location:
    USA
    Firm:
    Jones Day
    First Circuit Limits Scope of Jevic in Mooting Appeal of Unstayed Bankruptcy Sale Order
    2018-04-17

    In Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973 (2017), the U.S. Supreme Court held that the Bankruptcy Code does not allow bankruptcy courts to approve distributions to creditors in a “structured dismissal” of a bankruptcy case which violate the Bankruptcy Code’s ordinary priority rules without the consent of creditors.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, SCOTUS, First Circuit
    Location:
    USA
    Firm:
    Jones Day
    Ninth Circuit Reverses Course on Measure of Collateral Value in Cramdown Confirmation of Chapter 11 Plan
    2017-10-02

    In First Southern Nat’l Bank v. Sunnyslope Hous. LP (In re Sunnyslope Hous. LP), 2017 BL 216965 (9th Cir. June 23, 2017), the U.S. Court of Appeals for the Ninth Circuit held en banc that, in determining whether a chapter 11 plan may be confirmed over the objection of a secured creditor, the creditor’s collateral must be valued in accordance with the debtor’s intended use of the property, even if the property would realize more in a foreclosure sale because of the existence of restrictive covenants.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Jones Day, Ninth Circuit
    Location:
    USA
    Firm:
    Jones Day
    Sixth Circuit Rejects Per Se Rule Automatically Mooting Sale Appeals in the Absence of a Stay
    2017-06-01

    Debtors beware: The Sixth Circuit Court of Appeals has recently expanded the ability of parties to appeal a bankruptcy court's approval of a sale of assets notwithstanding the statutory mootness rule set forth in section 363(m) of the Bankruptcy Code.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Sixth Circuit
    Location:
    USA
    Firm:
    Jones Day

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