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    Ninth Circuit Rules That Hypothetical Preference Actions May Be Considered in Applying the Greater Amount Test
    2017-08-11

    In Schoenmann v. Bank of the West (In re Tenderloin Health), 849 F.3d 1231 (9th Cir. 2017), a divided panel of the U.S. Court of Appeals for the Ninth Circuit recently addressed as a matter of apparent first impression whether or not a bankruptcy court can consider hypothetical preference actions in analyzing whether a creditor-transferee in preference litigation received more than it would have received in a hypothetical chapter 7 liquidation, as required by section 547(b)(5) of the Bankruptcy Code.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Ninth Circuit
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Mass Layoffs When Section 363 Sales Fail and Cases Convert: Third Circuit Adopts Probability Standard for WARN Act Liability
    2017-08-14

    On August 4, 2017, the Third Circuit Court of Appeals issued its ruling in Varela v. AE Liquidation, Inc. (In re AE Liquidation, Inc.), 2017 U.S. App. LEXIS 14359 (3d Cir.

    Filed under:
    USA, Employment & Labor, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Debtor, Liquidation, Worker Adjustment and Retraining Notification Act 1988 (USA), United States bankruptcy court, Third Circuit
    Authors:
    Elliot M. Smith
    Location:
    USA
    Firm:
    Squire Patton Boggs
    Grede v. FCStone, LLC (In re Sentinel Management Group, Inc.)
    2017-08-14

    (7th Cir. Aug. 14, 2017)

    The Seventh Circuit reverses the district court and holds that certain funds held by the debtor were held in trust for the appellant and other creditors in the same customer class. The funds therefore were not property of the estate that should be distributed pro rata to all creditors. Opinion below.

    Judge: Hamilton

    Attorneys for Appellant: Foley & Lardner LLP, Stephen Bedell, Robert Seth Bressler, Geoffrey S. Goodman, David B. Goroff, Thomas P. Krebs, William J. McKenna, Jr.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Stoll Keenon Ogden PLLC, Seventh Circuit
    Authors:
    Matt Lindblom
    Location:
    USA
    Firm:
    Stoll Keenon Ogden PLLC
    New Delaware Involuntary Chapter 11 Filing - Speed Vegas
    2017-08-14

    Creditors have filed an involuntary petition for relief under Chapter 11 against Speed Vegas, a Las Vegas, Nev.-based recreational race

    Filed under:
    USA, Insolvency & Restructuring, Cole Schotz PC
    Location:
    USA
    Firm:
    Cole Schotz PC
    Court Agrees to Review Ruling Concerning Standard for Recharacterizing Debt as Equity
    2017-08-11

    On June 27, 2017, the Court granted certiorari n PEM Entities LLC v. Levin, No. 16-492 (U.S. June 27, 2017), in which it will have the opportunity to consider "[w]hether bankruptcy courts should apply a federal rule of decision (as five circuits have held) or a state law rule of decision (as two circuits have held, expressly acknowledging a split of authority) when deciding to recharacterize a debt claim in bankruptcy as a capital contribution." The Court agreed to review the Fourth Circuit’s ruling in PEM Entities, LLC v.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Fourth Circuit
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Two Recent Decisions Demonstrate Continued Disagreement Over Whether Economic Value or Face Amount of Liens Is Appropriate Metric in Authorizing Free and Clear Bankruptcy Sale
    2017-08-11

    The ability of a trustee or chapter 11 debtor in possession ("DIP") to sell bankruptcy estate assets "free and clear" of liens on the property under section 363(f) of the Bankruptcy Code has long been recognized as one of the most powerful tools for restructuring a debtor’s balance sheet and generating value in bankruptcy.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, Jones Day, Debtor in possession, United States bankruptcy court
    Authors:
    Jeffrey B. Ellman (Jeff) , Daniel J. Merrett (Dan) , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Coslow v. Reisz (In re Coslow)
    2017-08-03

    (Bankr. W.D. Ky. July 28, 2017)

    Filed under:
    USA, Kentucky, Banking, Insolvency & Restructuring, Litigation, Real Estate, Stoll Keenon Ogden PLLC, Mortgage loan, United States bankruptcy court
    Authors:
    Matt Lindblom
    Location:
    USA
    Firm:
    Stoll Keenon Ogden PLLC
    The Financially Distressed Subcontractor on a Government Contract: What a Prime Contractor Should Do to Protect the Project and Itself
    2017-08-03

    Some bankruptcy experts predict an increase in business failures for government contractors in the coming years. Increased demands and constraints on government spending will stress both prime contractors and subcontractors. As federal regulations generally place the burden of compliance on prime contractors, a financially distressed subcontractor is a concern not only for the sub, but also for the prime contractor.

    A sub’s financial problems jeopardize the sub’s ability to perform its subcontract and, thus, pose serious threats to a prime contractor, including:

    Filed under:
    USA, Insolvency & Restructuring, Projects & Procurement, Bradley Arant Boult Cummings LLP, Subcontractor
    Authors:
    Jay Bender
    Location:
    USA
    Firm:
    Bradley Arant Boult Cummings LLP
    Lessees Left in Limbo
    2017-08-03

    Do a lessee’s possessory interests in real property survive a “free and clear” sale of the property under section 363 of the Bankruptcy Code? In a recent decision, the Ninth Circuit Court of Appeals said “no,” holding that section 365(h) did not protect the interest of the lessee in the context of a section 363 sale when there had been no prior formal rejection of the lease under section 365.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Squire Patton Boggs, Bankruptcy, Leasehold estate, Debtor in possession, Trustee, United States bankruptcy court
    Authors:
    Kate Thomas
    Location:
    USA
    Firm:
    Squire Patton Boggs
    Time Is Money: Historical Strip Prices and Valuation in Oil & Gas Bankruptcies
    2017-08-07

    Timing is key to valuation of all types and in all contexts. But in bankruptcy, valuation timing can take on heightened importance because a central element of bankruptcy involves distributing value as of a specific point in time. Higher valuation means larger creditor recoveries in bankruptcy, and lower valuation means smaller creditor recoveries. Valuation can also affect which creditors receive those recoveries and the extent to which various stakeholders retain an interest in the reorganized debtor.

    Filed under:
    USA, Energy & Natural Resources, Insolvency & Restructuring, Litigation, Wilmer Cutler Pickering Hale and Dorr LLP
    Authors:
    Benjamin W. Loveland , Philip D. Anker , George W. Shuster, Jr. , Michael Guippone
    Location:
    USA
    Firm:
    Wilmer Cutler Pickering Hale and Dorr LLP

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