As they say, what one hand giveth, the other hand taketh. In its recent decision in In re MPM Silicones, LLC, the U.S. Court of Appeals for the Second Circuit addressed make-whole premiums and cramdown rates of interest (among other issues not addressed here), issuing rulings that will impact creditors and debtors alike.

How realistic is it for creditors to anticipate receiving interest on their claims in bankruptcy? The answer depends on whether the claim is secured or unsecured, whether interest is claimed for the period before or after the bankruptcy filing, and whether the debtor is solvent or insolvent, to name just a few considerations.

(Bankr. E.D. Ky. Nov. 1, 2011)

ExGen Texas Power, LLC, along with six of its subsidiaries and affiliates, has filed a petition for relief under Chapter 11 in the Bankruptcy Court for the District of Delaware (Lead Case No. 17-12377). ExGen’s Petition reports $100 – $500 million in assets and $500 million – $1 billion in liabilities.

Venezuela’s initiative is unlikely to set the stage for a restructuring of international obligations in the face of US sanctions.

Key Points:

• US sanctions will prohibit US persons from engaging in a restructuring of Venezuela and PdVSA debts that includes the issuance of “new” long term debt.

• Creditors should expect that enforcement action will follow a default. The outcomes of that enforcement action will affect all stakeholders, whether or not they participate.

Restructuring Announcement

As the Supreme Court prepares to hear oral argument in Oil States Energy Services LLC v Greene's Energy Group LLC, the constitutionality and structure of inter partes review hangs in the balance. In 2011 Congress enacted the Leahy-Smith America Invents Act, which established the existence of inter partes review proceedings. Inter partes reviews allow private third parties to challenge certain patent validity issues before the US Patent and Trademark Office’s (USPTO) Patent Trial and Appeal Board (PTAB).

A recent decision of the United States Bankruptcy Court for the Southern District of New York provides important guidance on the limits of nonconsensual third-party releases in the Second Circuit.[1] SunEdison, Inc. sought confirmation of a plan for itself and its affiliated debtors.

In October 2017, the 2nd U.S. Circuit Court of Appeals, in In re MPM Silicones (Momentive) LLC, held that a non-consenting class of creditors is entitled to receive post-confirmation interest at a market rate if an efficient market exists to determine such a rate. In reaching its decision, the 2nd Circuit overruled prior decisions by the Bankruptcy Court and the District Court, which had held that the applicable rate of interest should be determined using the formula method adopted by the Supreme Court in Till v. SCS Credit Corp., 541 U.S.

On October 20, 2017, the United States Court of Appeals for the Second Circuit issued a decision which, among other things,[1] affirmed the lower courts’ holding that certain noteholders were not entitled to payment of a make-whole premium. The Second Circuit held that the make-whole premium only was due in the case of an optional redemption, and not in the case of an acceleration brought about by a bankruptcy filing.

Exelco NV, a diamond and precious metals trader based in Antwerp, Belgium, has filed a voluntary petition under Chapter 15 in the Bankruptcy Court for the District of Delaware (Case No. 17-12409).