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    US Bankruptcy Court limits ISDA counterparty rights upon a bankruptcy event of default
    2010-06-25

    In re Lehman Brothers Holdings, Inc., Case No. 08-13555 et seq. (JMP)(jointly administered)

    In this US decision, the Bankruptcy Court held that the "safe harbour" protections of the US Bankruptcy Code only protect a non-defaulting party's right to liquidate, terminate or accelerate a swap, to offset and to net termination values and payment amounts and to foreclose on collateral, but do not permit the withholding of performance under a swap if the swap is not terminated.

    Filed under:
    USA, Derivatives, Insolvency & Restructuring, Litigation, Reed Smith LLP, Bankruptcy, Debtor, Collateral (finance), Interest, Swap (finance), Foreclosure, Withholding tax, Concession (contract), Liquidation, Sunset provision, Default (finance), International Swaps and Derivatives Association, Lehman Brothers, Title 11 of the US Code, United States bankruptcy court
    Authors:
    Siân C. Fellows , Nicholas Horsfield
    Location:
    USA
    Firm:
    Reed Smith LLP
    FHFA proposes rules on GSE conservatorships and receiverships
    2010-07-08

    The Federal Housing Finance Agency (FHFA) has proposed new rules to "codify the terms of conservatorship and receivership operations for Fannie Mae, Freddie Mac and the Federal Home Loan Banks," as required by the Housing and Economic Recovery Act of 2008.

    Filed under:
    USA, Insolvency & Restructuring, Alston & Bird LLP, Shareholder, Breach of contract, Interest, Liability (financial accounting), Federal Deposit Insurance Corporation (USA), Federal Housing Finance Agency, American Recovery and Reinvestment Act 2009 (USA)
    Authors:
    David E Brown
    Location:
    USA
    Firm:
    Alston & Bird LLP
    GFI Acquisition, LC v. American Federated Title Corp
    2010-07-08

    GFI Acquisition, LLC v. American Federated Title Corp., 2010 Bankr. LEXIS 1217

    An action was brought by the plaintiff alleging that the defendants breached an agreement of purchase and sale by failing to disclose provisions in the agreement which would operate to lock the plaintiffs out of subsequent negotiations to refinance loans on the properties to be assumed on the date of closing.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Gowling WLG, Breach of contract, Interest, Discovery, Negligence, Refinancing, United States bankruptcy court
    Authors:
    Louis A. Frapporti
    Location:
    USA
    Firm:
    Gowling WLG
    Trademark licensing agreement is not subject to rejection in bankruptcy
    2010-07-07

    Reversing both the bankruptcy court and the district court, the U.S. Court of Appeals for the Third Circuit held that a trademark licensing agreement had been substantially performed and was therefore not subject to rejection under §365(a) of the Bankruptcy Code. In re Exide Technologies, Case No. 08-1872 (3d Cir., June 1, 2010) (Roth, J.) (Ambro, J., concurring).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Trademarks, McDermott Will & Emery, Bankruptcy, Breach of contract, Liability (financial accounting), Concurring opinion, US Congress, US Code, United States bankruptcy court, Third Circuit
    Authors:
    Megan Heller
    Location:
    USA
    Firm:
    McDermott Will & Emery
    BP in the wake of the Deepwater Horizon incident and the bankruptcy implications of mounting environmental liabilities
    2010-07-07

    On April 20, 2010, an explosion on the Deepwater Horizon oil drilling rig located off the coast of Louisiana killed eleven crewmen and set off what is now considered the largest offshore oil spill in U.S. history. As a result, BP p.l.c. (“BP”), the parent company of the British Petroleum multinational corporation, faces mounting liabilities related to the damages caused by the disaster and hundreds of lawsuits that have been filed in numerous U.S. state and federal courts.

    Filed under:
    USA, Energy & Natural Resources, Environment & Climate Change, Insolvency & Restructuring, Cadwalader Wickersham & Taft LLP, Pollution, Bankruptcy, Injunction, Liability (financial accounting), Public limited company, Subsidiary, Gross negligence, Deepwater Horizon oil spill, BP, Goldman Sachs, Clean Water Act 1972 (USA)
    Authors:
    Richard Nevins , Gregory M. Petrick , Ingrid Bagby
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Do purchasers of tax sale certificates under New Jersey state law qualify as holders of "tax claims" under federal bankruptcy law?
    2010-07-06

    Chapter 11 of the United States Bankruptcy Code is intended to allow financially stressed debtors to restructure their debt obligations through a plan of reorganization. Typically, a Chapter 11 plan places different types of claims in different classes and, subject to various requirements of the Bankruptcy Code, allows the debtor to pay only portions of the claims (and in certain circumstances not to pay certain claims at all). Moreover, the Bankruptcy Code allows a debtor the flexibility to structure a plan to defer the payment of certain claims.

    Filed under:
    USA, New Jersey, Insolvency & Restructuring, Litigation, Tax, Lowenstein Sandler LLP, Bankruptcy, Debtor, Interest, Debt, Deferred tax, US Congress, Title 11 of the US Code, United States bankruptcy court, Third Circuit
    Location:
    USA
    Firm:
    Lowenstein Sandler LLP
    Protecting trademark licensee’s right to continued use of trademark when licensor declares bankruptcy
    2010-07-06

    In the case of In re: Exide Technologies, decided on June 1, 2010, the US Court of Appeals for the Third Circuit reversed two lower court decisions and held that a 1991 agreement between Exide Technologies and EnerSys Delaware Inc., which included a license to EnerSys for use of the “EXIDE” trademark, is not an executory contract that can be rejected by Exide in bankruptcy proceedings.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Trademarks, Mayer Brown, Bankruptcy, Debtor, Breach of contract, Debtor in possession, US Code, United States bankruptcy court, Third Circuit
    Authors:
    Richard M. Assmus , Deborah Schavey Ruff , John J. Voorhees, Jr.
    Location:
    USA
    Firm:
    Mayer Brown
    Bank's pre-bankruptcy security interest in funds in bank account was not terminated by delivery of funds to trustee
    2010-07-06

    The Bankruptcy Appellate Panel for the Sixth Circuit has issued an opinion protecting and preserving a bank’s security interest in funds in the debtor’s bank account notwithstanding the fact that the bank released those funds to the trustee. In re Cumberland Molded Products, LLC, No. 09-8049 (6th Cir. B.A.P. June 23, 2010).

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Frost Brown Todd LLP, Regulatory compliance, Bankruptcy, Debtor, Waiver, Accounts receivable, Limited liability company, Personal property, Intangible asset, Trustee, Sixth Circuit, Bankruptcy Appellate Panel
    Location:
    USA
    Firm:
    Frost Brown Todd LLP
    Vermont rejects Fairpoint reorganization plan
    2010-07-02

    On Monday, the Vermont Public Safety Board (VPSB) threw up a roadblock against Fairpoint Communications’ quest to emerge from bankruptcy with the issuance of a 96- page order that rejects the company’s plan of reorganization. Saddled with debt accruing from its $2.3 billion purchase of landline phone assets from Verizon Communications in 2008, Fairpoint—a regional provider of landline telephone services in the states of Vermont, New Hampshire and Maine—filed for Chapter 11 bankruptcy protection in October of 2009.

    Filed under:
    USA, Vermont, Insolvency & Restructuring, Telecoms, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Bankruptcy, ISP, Board of directors, Broadband, Option (finance), Debt, Verizon Communications
    Authors:
    Patrick S. Campbell
    Location:
    USA
    Firm:
    Paul, Weiss, Rifkind, Wharton & Garrison LLP
    Plan administrator in Goody's bankruptcy files preference actions
    2010-07-02

    Introduction

    Recently, the Plan Administrator for the Goody's Family Clothing bankruptcy commenced adversary actions against various defendants in the United States Bankruptcy Court for the District of Delaware. The Goody's Plan Administrator was appointed pursuant to Goody's plan of reorganization. The Bankruptcy Court approved Goody's plan on October 7, 2008, approximately four months after the company filed for bankruptcy.

    Goody's Second Bankruptcy Filing

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Fox Rothschild LLP, Bankruptcy, United States bankruptcy court, US District Court for District of Delaware
    Authors:
    L. Jason Cornell
    Location:
    USA
    Firm:
    Fox Rothschild LLP

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