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    To Retain (Under Section 327(a) or 363(b) of the Bankruptcy Code) or Not to Retain? Retention of Liquidation Consultants in Bankruptcy Cases
    2019-03-22

    In a recent opinion – In re Heritage Home Group LLC, et al., Case No. 18-11736 (KG), 2018 WL 4684802 (Bankr. D. Del. Sept. 27, 2018) – the Delaware Bankruptcy Court addressed the longstanding issue of which professional persons must be retained under section 327(a) of the Bankruptcy Code.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, Liquidation, US District Court for District of Delaware
    Authors:
    Eli Blechman
    Location:
    USA
    Firm:
    Weil Gotshal & Manges LLP
    Model LPA Provisions for Subscription Credit Facilities
    2019-03-25

    The first step in determining if a subscription credit facility, often called a capital call facility (a “Subscription Facility”), is a viable option for a private equity or similar investment fund (a “Fund”) is to diligence the limited partnership agreement or other organizational document of the Fund (the “LPA”). Subscription Facility lenders usually require that specific concepts and language be included in an LPA in order to provide a Subscription Facility without additional credit support, such as investor consent letters.

    Filed under:
    USA, Corporate Finance/M&A, Insolvency & Restructuring, Mayer Brown, Bankruptcy, Employee Retirement Income Security Act 1974 (USA), Private equity, Limited partnership
    Location:
    USA
    Firm:
    Mayer Brown
    Application of the Fair Debt Collection Practices Act in Bankruptcy
    2019-03-25

    On October 17, 2018, the Consumer Financial Protection Bureau (CFPB) released its Fall 2018 rulemaking agenda. Among the items on the agenda was the CFPB’s planned issuance – by March 2019 – of a Notice of Proposed Rulemaking (NPRM) for the Fair Debt Collection Practices Act (FDCPA). The goal of the NPRM is to address industry and consumer group concerns over “how to apply the 40-year old [FDCPA] to modern collection processes,” including communication practices and consumer disclosures.

    Filed under:
    USA, New York, Company & Commercial, Insolvency & Restructuring, Litigation, Bradley Arant Boult Cummings LLP, Consumer Financial Protection Bureau (USA), Fair Debt Collection Practices Act 1977 (USA)
    Location:
    USA
    Firm:
    Bradley Arant Boult Cummings LLP
    Several Claims in Consolidated Action Dismissed Based Upon Statute of Limitations
    2019-03-26

    Following W.R. Grace’s filing for bankruptcy in April 2001, a series of cases were filed against Maryland Casualty, which was the company’s primary general liability insurer from 1962 to 1973. Specifically, the twenty-nine plaintiffs in this matter filed a lawsuit relating to their diagnosis of asbestosis, in the District Court of Montana in November 2001. The plaintiffs originally named the State of Montana only. Maryland Casualty was named in March 2002. Additionally, seven of the twenty-nine plaintiffs had previously filed suit against Maryland Casualty, in June 2001.

    Filed under:
    USA, Employment & Labor, Insolvency & Restructuring, Insurance, Litigation, Goldberg Segalla LLP, Statute of limitations
    Location:
    USA
    Firm:
    Goldberg Segalla LLP
    10 Years After Koehler, NY Still Good For Judgment Creditors
    2019-03-26

    Although it has been nearly a decade since the New York Court of Appeals issued its decision in Koehler v. Bank of Bermuda Ltd.,[1] making New York an attractive forum for judgment creditors to execute on judgment debtors’ assets held by themselves or others in foreign jurisdictions, the decision stands firm much to the disappointment of out-of-state competing creditors, as one such creditor recently experienced in Kassover v. Prism Ventures Partners LLC et al.[2]

    Filed under:
    USA, Florida, New York, Banking, Company & Commercial, Insolvency & Restructuring, Litigation, Windels Marx Lane & Mittendorf LLP, Limited liability company
    Authors:
    Robert J. Malatak
    Location:
    USA
    Firm:
    Windels Marx Lane & Mittendorf LLP
    Down but not out (of the money): Are underwater interest holders entitled to a share of the premium on a sale free and clear of liens under US Bankruptcy Code section 363?
    2019-03-26

    Bankruptcy Code section 363(f) allows a debtor to sell an asset free and clear of interests (such as liens and leases) under certain conditions − for example, if the interest is subject to a bona fide dispute, the interest holder consents, or the debt secured by the lien is fully satisfied.

    Filed under:
    USA, Insolvency & Restructuring, DLA Piper
    Authors:
    Eric Goldberg
    Location:
    USA
    Firm:
    DLA Piper
    Retail Bankruptcies and Closings: What’s a Landlord or Landlord’s Lender to Do?
    2019-03-27

    Every week another national chain of retailers is announcing bankruptcy, downsizing, or other restructuring. What started as a drip has become a flood, and the surge is so strong that it must make shopping center owners, and their lenders, rethink what a shopping center can be in the future.

    Filed under:
    USA, Wisconsin, Insolvency & Restructuring, Real Estate, Michael Best & Friedrich LLP
    Authors:
    Nancy Leary Haggerty
    Location:
    USA
    Firm:
    Michael Best & Friedrich LLP
    Deal With It: Section 1141(c) May Apply to Property not Identified in a Disclosure Statement
    2019-03-21

    Under Section 1141(c) of the Bankruptcy Code, property “dealt with” in a confirmed plan is free and clear of the claims and interests of creditors, provided the holder of the claim or interest participated in the bankruptcy case. But what about assets that are not explicitly specified in a disclosure statement? United States District Court Judge Cathy Seibel of the Southern District of New York recently affirmed a decision by Bankruptcy Judge Robert D.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Patterson Belknap Webb & Tyler LLP, US District Court for the Southern District of New York
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP
    U.S. District Court Judge Denies Motions to Withdraw PG&E Adversary Proceeding from Bankruptcy Court
    2019-03-21

    On March 11, 2019, a U.S. district court judge in California denied FERC’s motion to withdraw the reference of Pacific Gas and Electric’s (“PG&E”) adversary proceeding from the U.S. Bankruptcy Court in the ongoing jurisdictional dispute between FERC and the bankruptcy court. In his ruling, Judge Haywood Gilliam Jr. of the U.S.

    Filed under:
    USA, Energy & Natural Resources, Insolvency & Restructuring, Litigation, Troutman Pepper, United States bankruptcy court, US District Court for Northern District of California
    Authors:
    Tom Marshall , Russell Kooistra
    Location:
    USA
    Firm:
    Troutman Pepper
    Southern District of Texas Upholds Non-Debtor Third-Party Releases Based on Expansive View of Creditor Consent
    2019-03-21

    On February 8, 2019, the United States District Court for the Southern District of Texas, Houston Division, affirmed a Bankruptcy Court order enjoining a claimant from pursuing claims against a debtor’s non-debtor affiliates based upon third-party release and injunction provisions included in the debtor’s confirmed chapter 11 plan. In re CJ Holding Co., 2019 WL 497728 (S.D. Tex. Feb. 8, 2019).

    Filed under:
    USA, Employment & Labor, Insolvency & Restructuring, Litigation, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Debtor
    Authors:
    Jacob A Adlerstein , Paul M. Basta , Robert Britton , Kelley A. Cornish , Alice Belisle Eaton , Brian S. Hermann , Kyle J. Kimpler , Alan W Kornberg , Elizabeth R. McColm , Andrew N. Rosenberg , Jeffrey D. Saferstein , Erica G. Weinberger , Kellie A. Cairns , Miriam M. Levi
    Location:
    USA
    Firm:
    Paul, Weiss, Rifkind, Wharton & Garrison LLP

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