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    Marblegate Ruling is Reversed on Appeal: Second Circuit Adopts Narrow Interpretation of TIA Section 316(b)
    2017-01-19

    The Second Circuit issued its much anticipated decision in Marblegate Asset Management LLC v. Education Management Corp., holding that “Section 316(b) prohibits only non-consensual amendments to an indenture’s core payment terms.” At issue is whether the phrase “right . . . to receive payment” forecloses “more than formal amendments to payment terms that eliminate the right to sue for payment.” The Second Circuit held that it does not.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, Second Circuit
    Authors:
    Miranda S. Schiller
    Location:
    USA
    Firm:
    Weil Gotshal & Manges LLP
    Marblegate: Second Circuit Reverses Broad Interpretation of Trust Indenture Act in Out-of-Court Restructurings
    2017-01-20

    In its highly anticipated Marblegate Asset Management LLC v. Education Management Corp. decision,[1] the U.S.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, Jones Day, Second Circuit
    Authors:
    Bruce Bennett , Brad B. Erens , Timothy G. Hoxie , Edward B. Winslow (Ward)
    Location:
    USA
    Firm:
    Jones Day
    Who Decides Whether Bankruptcy Jurisdiction Exists after Removal from State Court?
    2017-01-20

    Imagine that while a bankruptcy case is pending, the debtor-in-possession or bankruptcy trustee files a state law claim against one of the estate's creditors. Presumably, if the debtor wins its state law claim, that recovery augments the bankruptcy estate and increases the amount available to pay the debtor's creditors.[1] The creditor, seeking to avoid litigating the action in the debtor's home state court, timely removes the lawsuit to federal court as permitted under 28 U.S.C.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Burr & Forman LLP, Ninth Circuit
    Location:
    USA
    Firm:
    Burr & Forman LLP
    Re-Energizing Companies in a Post-Restructuring World
    2017-01-23

    Precipitous commodity price declines and high volatility, coupled with high operating costs and high levels of borrowing, led to a wave of restructuring in the energy industry. In the frenzy of restructuring, a company is consumed with legal issues, employee layoffs, salary cuts, asset sales, and workload reassignments, to name a few. When the company emerges out of restructuring, the focus turns to healing.

    Filed under:
    USA, Company & Commercial, Employment & Labor, Insolvency & Restructuring, Opportune LLP
    Authors:
    Lynell Rogeri
    Location:
    USA
    Firm:
    Opportune LLP
    Mission Accomplished … First Circuit Bankruptcy Appellate Panel Acknowledges Post-Rejection Rights of Licensee of Trademarks
    2017-01-18

    The Bankruptcy Appellate Panel (“BAP”) for the First Circuit recently upheld a licensee’s rights to use a debtor’s trademarks and logo after a rejection by the debtor of the underlying licensing and distribution agreement. Mission Product Holdings, Inc., v. Tempnology LLC (In re Tempnology LLC) 2016 WL 6832837 (Bankr. 1st Cir. 11/18/16).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Trademarks, Sullivan & Worcester LLP
    Authors:
    Kimberly B. Herman
    Location:
    USA
    Firm:
    Sullivan & Worcester LLP
    Second Circuit Reverses Marblegate Decision
    2017-01-18

    Trust Indenture Act Section 316(b) Limited to Actual Amendments to An Indenture’s Core Terms

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Seyfarth Shaw LLP
    Authors:
    Edward M. Fox
    Location:
    USA
    Firm:
    Seyfarth Shaw LLP
    In re Lockhart
    2017-01-18

    (Bankr. W.D. Ky. Jan. 17, 2017)

    The bankruptcy court grants the creditor’s motion for sanctions, and awards the creditor her attorney fees. The debtor filed the Chapter 13 petition for the stated purpose of obtaining more time to obtain a reduction in his maintenance obligation owed to the creditor in the state court. The bankruptcy court finds that this was a violation of Bankruptcy Rule 9011(b). Opinion below.

    Judge: Lloyd

    Attorney for Debtor: Naber & Joyner, J. Gregory Joyner

    Attorney for Creditor: Joseph S. Elder II

    Filed under:
    USA, Kentucky, Banking, Insolvency & Restructuring, Litigation, Stoll Keenon Ogden PLLC
    Authors:
    Matt Lindblom
    Location:
    USA
    Firm:
    Stoll Keenon Ogden PLLC
    Second Circuit Reverses Marblegate, Clarifying Meaning of TIA Section 316(b)
    2017-01-18

    In an eagerly-awaited decision, the Second Circuit Court of Appeals has vacated the district court's decision in Marblegate Asset Management, LLC v. Education Management Finance Corp. The district court's decision had created much uncertainty and confusion in the restructuring and indenture trustee community. The Court of Appeals has now held that Section 316(b) of the Trust Indenture Act (“TIA”) is not violated by a restructuring merely because it makes payment to dissenting holders unlikely or impossible.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Moses & Singer LLP, Second Circuit
    Authors:
    Alan Kolod , David Rabinowitz , Kent C. Kolbig
    Location:
    USA
    Firm:
    Moses & Singer LLP
    Appeals Court Overturns Marblegate, Citing Analysis by Shearman & Sterling Partner
    2017-01-18

    The law on debt restructurings and liability management is back to where it was. Yesterday, the Second Circuit Court of Appeals reversed the controversial District Court decisions in the Marblegate-Education Management bondholder litigation. The case attracted wide-spread attention in financial markets, and we discussed it in an earlier client alert.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, A&O Shearman, Bond (finance)
    Authors:
    Robert Evans III , Harald Halbhuber , Joel Moss , Antonia E. Stolper , Fredric Sosnick
    Location:
    USA
    Firm:
    A&O Shearman
    Substantive Consolidation − Recent Decisions Examine a Bankruptcy Court’s Ability to Augment a Debtor’s Estate
    2017-01-17

    Two recent opinions concerning the law of substantive consolidation should be of interest to business owners and commercial real estate market participants. The doctrine of substantive consolidation allows a bankruptcy court, in certain circumstances, to augment the assets of a debtor’s bankruptcy estate with the assets of others affiliated with the debtor. The two decisions both involved efforts by chapter 7 trustees to substantively consolidate the assets of related, non-debtor entities with the bankruptcy estate administered by each trustee.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Nutter McClennen & Fish LLP, United States bankruptcy court, Sixth Circuit
    Authors:
    John G. Loughnane
    Location:
    USA
    Firm:
    Nutter McClennen & Fish LLP

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