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    “U Can’t Touch This”: When A Garnished Employee Goes Bankrupt
    2019-05-08

    Seyfarth Synopsis: Employers increasingly find themselves in the difficult position of deciding whether to continue garnishing an employee’s wages pursuant to a garnishment order when the employee files for bankruptcy. On one hand, the employer risks penalties for failing to withhold wages; on the other hand, the employer risks sanctions for violating the automatic stay generated by a bankruptcy filing. Below we discuss this dilemma and employers’ options.

    Filed under:
    USA, California, Employment & Labor, Insolvency & Restructuring, Seyfarth Shaw LLP, Google
    Authors:
    Ryan Pinkston
    Location:
    USA
    Firm:
    Seyfarth Shaw LLP
    Debtor Is a Financial Institution for Purposes of Settlement Payment Safe Harbor, Rules Southern District of New York
    2019-05-08

    On April 23, 2019, the United States District Court for the Southern District of New York, in fraudulent transfer litigation arising out of the 2007 leveraged buyout of the Tribune Company,1 ruled on one of the significant issues left unresolved by the US Supreme Court in its Merit Management decision last year.

    Filed under:
    USA, New York, Capital Markets, Insolvency & Restructuring, Litigation, Mayer Brown, Bankruptcy, Supreme Court of the United States, US District Court for the Southern District of New York
    Authors:
    Thomas S. Kiriakos , Sean T. Scott , Aaron Gavant , Tyler R. Ferguson
    Location:
    USA
    Firm:
    Mayer Brown
    FERC Denies Rehearing in PG&E Bankruptcy Dispute, Asserting Parallel Authority to Review the Effects of Rejection
    2019-05-08

    On May 1, 2019, FERC denied Pacific Gas and Electric Company’s (“PG&E”) requests for rehearing of two prior orders in which FERC held that it and the bankruptcy courts have concurrent jurisdiction to review and address the disposition of wholesale power contracts sought to be rejected through bankruptcy. FERC’s order comes as the PG&E bankruptcy proceedings in the United States Bankruptcy Court for the Northern District of California (“Bankruptcy Court”) remain ongoing.

    Filed under:
    USA, California, Energy & Natural Resources, Insolvency & Restructuring, Litigation, Troutman Pepper, FERC
    Authors:
    Katherine O'Konski , Russell Kooistra
    Location:
    USA
    Firm:
    Troutman Pepper
    ISDA 2018 US Resolution Stay Protocol
    2019-05-09

    On July 31, 2018 the International Swaps and Derivatives Association published the ISDA 2018 US Resolution Stay Protocol (the US Protocol). The US Protocol is intended to enable parties to ISDA Master Agreements and similar Protocol Covered Agreements (PCAs) to contractually recognize the cross-border application of special resolution regimes applicable to global systemically important entities and their affiliates.

    In this article, we provide a broad overview of the US Protocol and relevant resolution stay rules, then describe the effect and operation of the US Protocol.

    Filed under:
    USA, Banking, Derivatives, Insolvency & Restructuring, DLA Piper, International Swaps and Derivatives Association, Securities Investor Protection Corporation, Federal Deposit Insurance Act 1950 (USA)
    Authors:
    Marc A. Horwitz
    Location:
    USA
    Firm:
    DLA Piper
    Bankruptcy Hypotheticals for Equipment Lessors to Consider
    2019-05-02

    No equipment lessor wants to find itself a creditor of a lessee in a reorganization case under chapter 11 of the U.S. Bankruptcy Code (the Bankruptcy Code). However, when such a situation arises, a lessor is not without recourse – even where the facts give rise to situations not specifically addressed by the Bankruptcy Code.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Reed Smith LLP
    Authors:
    Alexis A. Leventhal
    Location:
    USA
    Firm:
    Reed Smith LLP
    Don’t Bank(ruptcy) On It: In re Adair
    2019-05-03

    The U.S. Justice Department (“DOJ”) has said that an Oregon woman who is employed by a marijuana staffing agency cannot use bankruptcy protection because of her firm’s ties to the cannabis industry. The U.S. Trustee—a DOJ bankruptcy administrator—objected to confirmation of the debtor’s Chapter 13 plan and moved to dismiss on the grounds that her income is earned in violation of the federal Controlled Substances Act (“CSA”).

    Filed under:
    USA, Healthcare & Life Sciences, Insolvency & Restructuring, Litigation, Burns & Levinson LLP
    Authors:
    Marcus Hernandez
    Location:
    USA
    Firm:
    Burns & Levinson LLP
    Another Ruling on Public Auctions Versus Private Sales Under Section 363
    2019-05-03

    Two weeks ago, we discussed asset sales under Bankruptcy Code section 363. As that post noted, section 363 requires court approval for asset sales outside the ordinary course of business, with courts ensuring that sales reflect a reasonable business judgment and have an articulated business justification. Debtors may choose to sell assets via a public auction or through a private sale.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Patterson Belknap Webb & Tyler LLP, Fifth Circuit
    Authors:
    Jonah Wacholder , Daniel A. Lowenthal
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP
    Make-Whole Premiums Enforceable Even After Ultra and Momentive
    2019-05-03

    Despite recent decisions in the U.S. Courts of Appeals for the Second Circuit (Momentive) and the Fifth Circuit (Ultra) questioning the enforceability of make-whole provisions in bankruptcy, on March 18, 2019, the Bankruptcy Court for the Southern District of New York determined in 1141 Realty that the make-whole provision contained in a loan agreement was enforceable notwithstanding acceleration of the loan by the secured lender.

    Background on Enforceability of Make-Whole Provisions in Bankruptcy

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Sidley Austin LLP
    Authors:
    Michael A. Burke , Jessica C. K. Boelter , James F. Conlan
    Location:
    USA
    Firm:
    Sidley Austin LLP
    Lender Primes Trustee in Seventh Circuit
    2019-05-03

    A bankruptcy trustee was “not entitled to avoid” a secured lender’s “lien under the Bankruptcy Code” (“Code”), held the U.S. Court of Appeals for the Seventh Circuit on Sept. 11, 2019. In re 180 Equipment, LLC, 2019 WL 4296751, *6 (7th Cir. Sept. 11, 2019). The court rejected the trustee’s argument that the lender’s “lien [was] avoidable because the [lender’s] financing statement failed to properly indicate the secured collateral.” Id., at 1.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Debtor, Title 11 of the US Code
    Authors:
    Michael L. Cook , James T. Bentley , Nathaniel J. Norman
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    New York District Court Finds That Tribune Qualifies as Financial Institution Under Bankruptcy Code Safe Harbor Provision
    2019-05-06

    On April 23, 2019, Judge Cote of the District Court for the SDNY, issued an opinion in In re Tribune Company Fraudulent Conveyance Litigation,[i] finding that the Tribune Company, which employed Computershare Trust Company (“CTC”) to handle payments made to shareholders as part of its leverage buyout (“LBO”), would be considered a “financial institution” as defined in

    Filed under:
    USA, New York, Company & Commercial, Insolvency & Restructuring, Litigation, King & Spalding LLP
    Authors:
    Arthur J. Steinberg , Scott Davidson
    Location:
    USA
    Firm:
    King & Spalding LLP

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