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    Disclaimers: paper shield or your best protection?
    2017-03-27

    The UK Court of Appeal recently considered the liability of issuers to secondary market investors under the Misrepresentation Act 1967 (the “1967 Act”) in the case of Taberna Europe CDO II Plc v Selskabet (formerly Roskilde Bank A/S) (In bankruptcy) [2016] EWCA Civ 1262. The Court found that primary and secondary investors could potentially be entitled to rely on online content, such as product presentations, which have been published in a deliberate manner, particularly if the issuer directs investors to the content.

    Filed under:
    USA, Insolvency & Restructuring, Internet & Social Media, Litigation, Media & Entertainment, Reed Smith LLP, Court of Appeal of England & Wales
    Authors:
    Diane Roberts
    Location:
    USA
    Firm:
    Reed Smith LLP
    Spradlin v. Pryor Cashman (In re Licking River Mining, LLC)
    2017-03-28

    (Bankr. E.D. Ky. Mar. 24, 2017)

    The bankruptcy court grants in part and denies in part the defendant’s motion to dismiss in this fraudulent and preferential transfer avoidance action. The trustee’s amended complaint failed to state claims based on certain transfers, but did state a preferential transfer claim.

    Judge: Wise

    Attorneys for Trustee: Bingham Greenebaum Doll LLP, Claude R.Bowles, Jr., Daniel J. Donnellon, Alex S. Rodger

    Attorneys for Defendant: Ross M. Bagley, Gideon Cashman, Eric M. Fishman, Adam R. Kegley

    Filed under:
    USA, Kentucky, Insolvency & Restructuring, Litigation, Stoll Keenon Ogden PLLC, United States bankruptcy court
    Authors:
    Matt Lindblom
    Location:
    USA
    Firm:
    Stoll Keenon Ogden PLLC
    Can a Creditor’s Inaction Violate the Automatic Stay?
    2017-03-28

    The filing of a bankruptcy case puts in place an automatic injunction, or stay, that halts most actions by creditors against a debtor. But can a creditor violate the automatic stay by not acting? The Tenth Circuit recently addressed the issue in WD Equipment, LLC v. Cowen (In re Cowen), adding to the split of authority on the issue.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Mintz, United States bankruptcy court, Tenth Circuit
    Location:
    USA
    Firm:
    Mintz
    SCOTUS Prohibits Non-Consensual Structured Dismissals in Deviation of Bankruptcy Code Priority Scheme
    2017-03-29

    The immediate effect of Jevic will be that practitioners may no longer structure dismissals in any manner that deviates from the priority scheme of the Bankruptcy Code without the consent of impaired creditors.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Duane Morris LLP, Debtor, Unsecured debt, Title 11 of the US Code, Supreme Court of the United States, United States bankruptcy court, Third Circuit
    Authors:
    Rudolph J. Di Massa, Jr. , Christopher M. Winter
    Location:
    USA
    Firm:
    Duane Morris LLP
    Jevic Holding: The Supreme Court Puts an End to Non-Consensual Structured Dismissals That Violate Bankruptcy Code Priority Scheme
    2017-03-23

    Yesterday, the Supreme Court issued is highly awaited ruling in Czyzewski et al. v. Jevic Holding Corp. et al. The Jevic case presented the question whether bankruptcy courts may approve non-consensual structured dismissals that vary the distribution scheme established by the Bankruptcy Code.

    Filed under:
    USA, Employment & Labor, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Supreme Court of the United States
    Authors:
    Kate Thomas
    Location:
    USA
    Firm:
    Squire Patton Boggs
    Yes, Virginia, there is a Code Priority Scheme: Supreme Court Strikes Down Structured Dismissals in Jevic
    2017-03-23

    A potential threat to the Code’s priority scheme is the allowance of “structured dismissals,” which include a settlement as part of the dismissal of the chapter 11 case that would distribute estate assets in a manner that contravenes the Code’s priority rules.

    Filed under:
    USA, Virginia, Banking, Insolvency & Restructuring, Litigation, Foley & Lardner LLP, Bankruptcy, Leveraged buyout, United States bankruptcy court
    Authors:
    Charles Tabb
    Location:
    USA
    Firm:
    Foley & Lardner LLP
    The Life Settlement Industry - Bankruptcy Issues - Part 2
    2017-03-23

    This second installment of our series, “The Life Settlement Industry – Bankruptcy Issues”, will address two related issues:

    (1) What type of interest (if any) does an investor-creditor have in a “life settlement” (i.e., a life insurance policy sold by the original owner to a third party for a value in excess of the policy’s cash surrender value, but less than its death benefit), and (2) How is the interest of an investor-creditor in a life settlement generally determined in a bankruptcy case?

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Berger Singerman LLP, Bankruptcy
    Authors:
    Deborah B. Talenfeld , Leslie Cloyd
    Location:
    USA
    Firm:
    Berger Singerman LLP
    Supreme Court Bars Use of Nonconsensual Priority-Violating Structured Dismissals
    2017-03-24

    On March 22, 2017, the United States Supreme Court held that bankruptcy courts cannot approve a “structured dismissal”—a dismissal with special conditions or that does something other than restoring the “prepetition financial status quo”—providing for distributions that deviate from the Bankruptcy Code’s priority scheme absent the consent of affected creditors. Czyzewski v.Jevic Holding Corp., No. 15-649, 580 U.S. ___ (2017), 2017 WL 1066259, at *3 (Mar. 22, 2017).

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Supreme Court of the United States, United States bankruptcy court
    Authors:
    Jacob A Adlerstein , Kelley A. Cornish , Alice Belisle Eaton , Brian S. Hermann , Alan W Kornberg , Elizabeth R. McColm , Andrew N. Rosenberg , Jeffrey D. Saferstein , Stephen J. Shimshak , Erica G. Weinberger
    Location:
    USA
    Firm:
    Paul, Weiss, Rifkind, Wharton & Garrison LLP
    For chapter 11 in shipping, cramdown is a bad play
    2017-03-24

    Securing support from principal creditors makes all the difference between a chapter 11 restructuring that saves a troubled shipping company and one that sinks it.

    When a shipping company's financial distress is extreme, it must work fast to preserve value and stem losses. The use of chapter 11 by shipping companies to coerce principal creditors to support an unfavorable restructuring where ownership refuses to share risk is costly, value destructive and generally fruitless.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Shipping & Transport, White & Case
    Authors:
    Scott Greissman
    Location:
    USA
    Firm:
    White & Case
    Brown v. Ellmann (In re Brown)
    2017-03-24

    (6th Cir. Mar. 20, 2017)

    The Sixth Circuit affirms the bankruptcy court’s order denying the debtor’s claim for an exemption under 11 U.S.C. § 522(d). The real property was fully encumbered by secured claims and thus the debtor had no equity in the property. The court applies its prior decision in In re Baldridge. The trustee also argued that the debtor’s appeal was moot under 11 U.S.C. § 363(m) and other authority but failed to meet the trustee’s burden on the issue. Opinion below.

    Judge: Merritt

    Attorney for Debtor: Gary Boren

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Stoll Keenon Ogden PLLC, Sixth Circuit
    Authors:
    Matt Lindblom
    Location:
    USA
    Firm:
    Stoll Keenon Ogden PLLC

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