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    What you don’t know can hurt you: lender’s appeal of sale order is statutorily moot despite lender’s claim that it didn’t know about the sale
    2014-05-27

    A nightmare scenario for a lender: you lend $1.2 million to a debtor to purchase equipment; you take a first priority security interest in the equipment; one day another company calls to tell you it purchased the equipment at a bankruptcy auction you never knew about, for 10-20% of what you’re owed; you try to overturn the sale, but cannot, because the sale is consummated and your appeal is now “statutorily moot.”  Could this happen?  It happened in a recent Oregon case.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Holland & Hart LLP, Debtor
    Location:
    USA
    Firm:
    Holland & Hart LLP
    FTC seeks privacy protection for personal information in bankruptcy proceeding
    2014-05-27

    On May 23, 2014, the Federal Trade Commission announced that the FTC’s Bureau of Consumer Protection sent a letter to the court overseeing the bankruptcy proceedings for ConnectEDU Inc. (“ConnectEDU”), an education technology company, warning that the proposed sale of the company’s assets raises privacy concerns.

    Filed under:
    USA, Insolvency & Restructuring, IT & Data Protection, Hunton Andrews Kurth LLP, Bankruptcy, Information privacy, Personally identifiable information, Federal Trade Commission (USA)
    Location:
    USA
    Firm:
    Hunton Andrews Kurth LLP
    PACA and bankruptcy: what secured lenders must know
    2014-05-27

    Law360, New York (May 27, 2014, 4:11 PM ET) -- The Perishable Agricultural Commodities Act has many ramifications for secured lenders who provide financing to borrowers that own goods that fall within its scope, particularly in bankruptcy. Because PACA provides its beneficiaries — unpaid suppliers and sellers of perishable agricultural commodities and products — with superior rights over other creditors through the establishment of a trust, secured lenders must be careful not to rely on the standard language in bankruptcy orders that cleanse assets of liens.

    Filed under:
    USA, Banking, Company & Commercial, Insolvency & Restructuring, Choate Hall & Stewart LLP, Bankruptcy, Commodity, US District Court for the Southern District of New York
    Authors:
    Sean M. Monahan , Dallas Nicole Cruz
    Location:
    USA
    Firm:
    Choate Hall & Stewart LLP
    Eighth Circuit expands subsequent new value preference defense in cases involving three-party relationships
    2014-05-28

    Recent Developments in Bankruptcy and Restructuring
    Volume 13 l No. 3 l May–June 2014 JONES DAY
    Business
    Restructuring
    Review
    Eighth Circuit Expands Subsequent New Value
    Preference Defense in Cases Involving Three-Party
    Relationships
    Charles M Oellermann and Mark G. Douglas
    A bankruptcy trustee or chapter 11 debtor-in-possession has the power under section
    547 of the Bankruptcy Code to avoid a transfer made immediately prior to
    bankruptcy if the transfer unfairly prefers one or more creditors over the rest of

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Debtor, Title 11 of the US Code, Eighth Circuit
    Location:
    USA
    Firm:
    Jones Day
    Compounding Pharmacy reaches $100-million settlement over meningitis outbreak
    2014-05-22

    A trustee has filed a motion requesting court approval of a bankruptcy plan that would require New England Compounding Pharmacy owners and executives to establish a $100-million settlement fund for the benefit of creditors and individuals allegedly harmed by a 2012 fungal meningitis outbreak linked to the company’s steroid injections. In re New Eng. Compounding Pharm., Inc., No. 12-19882 (Bankr. D. Mass., motion filed May 6, 2014).

    Filed under:
    USA, Healthcare & Life Sciences, Insolvency & Restructuring, Shook Hardy & Bacon LLP, Bankruptcy
    Authors:
    Debra S. Dunne , John D. Garretson , Chris A. Johnson , Madeleine M. McDonough , John Simpson
    Location:
    USA
    Firm:
    Shook Hardy & Bacon LLP
    None too appealing – district court turns aside Free Lance-Star Publishing credit bid lender
    2014-05-22

    A recent ruling in the Chapter 11 case of Free Lance-Star Publishing limited the credit bidding rights of a secured creditor.  The ruling has called into question the ability of the holder of secured debt to utilize such debt to acquire companies on a going concern basis in bankruptcy cases, particularly in instances where the debt was acquired at a discount for such expr

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Kelley Drye & Warren LLP, Secured creditor, United States bankruptcy court, US District Court for Eastern District of Virginia
    Authors:
    Benjamin D. Feder
    Location:
    USA
    Firm:
    Kelley Drye & Warren LLP
    When one solution is better than two
    2014-05-14

    Over the years, clients have sought my advice after they have obtained a judgment against a limited liability company or a corporation, and after they have tried, without success, to collect on that judgment.  All of the typical judgment enforcement methods have already failed.  Because judgment debtors generally do not volunteer payment and sometimes will take steps to make it much more difficult for a creditor to collect, this scenario is somewhat common.  In response, clients will ask what they can do.  There are a number of options.  These include putting the ju

    Filed under:
    USA, California, Insolvency & Restructuring, Litigation, White Collar Crime, Greenberg Glusker Fields Claman & Machtinger LLP, Bankruptcy, Debtor
    Authors:
    Jeffrey A. Krieger
    Location:
    USA
    Firm:
    Greenberg Glusker Fields Claman & Machtinger LLP
    Manufacturer's corner: dealing with your insolvent buyer
    2014-05-15

    It’s unfortunate, but it happens: you reach a deal with your customer and prepare to perform your side of the agreement, only to discover that your buyer is insolvent or close to it.  It is essential that you having a working knowledge your rights in this situation, because time is of the essence.

    Filed under:
    USA, Company & Commercial, Insolvency & Restructuring, Product Regulation & Liability, Spencer Fane LLP
    Authors:
    Ryan C. Hardy
    Location:
    USA
    Firm:
    Spencer Fane LLP
    Attacks on loan to own strategies continue
    2014-05-15

    As the economy continues to emerge from the global recession in the late 2000s, one of the prevailing trends we have seen is the continuation of challenges to distressed investors that have employed a “loan-to-own” strategy. Boiled to its basics, the loan to own strategy is a method of investing by a distressed investor — frequently a private equity or hedge fund — that acquires the secured debt of a borrower at a discount (often deep) with the hope of either being paid at par or using the par value of the secured debt to acquire the company.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, Bilzin Sumberg, Bankruptcy, Private equity, Hedge funds, Distressed securities, Coercion
    Authors:
    Jay M. Sakalo
    Location:
    USA
    Firm:
    Bilzin Sumberg
    Energy Future Holdings files for bankruptcy; second lienholders oppose deal
    2014-05-15

    On April 29, 2014, Energy Future Holdings filed what it claims is a pre-packaged chapter 11 bankruptcy in Delaware. The bankruptcy, which ranks among the largest cases ever with over $36 billion in assets and nearly $50 billion in debt, is the product of an agreement with senior bondholders on the terms of a debt-for-equity swap.

    Filed under:
    USA, Insolvency & Restructuring, Bilzin Sumberg, Bankruptcy
    Authors:
    Jeffrey I. Snyder
    Location:
    USA
    Firm:
    Bilzin Sumberg

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