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    Storm clouds continue to gather over Bankruptcy Code’s safe harbors
    2014-05-29

    As noted in a previous Sutherland Legal Alert, the American Bankruptcy Institute has formed a Commission to Study the Reform of Chapter 11 (the Commission). To further its goal of proposing changes to modernize the Bankruptcy Code, the Commission formed a number of advisory committees, including one named the Financial Contracts, Derivatives and Safe Harbors Committee (the Committee).

    Filed under:
    USA, Insolvency & Restructuring, Eversheds Sutherland (US) LLP, Bankruptcy, Security (finance)
    Authors:
    James M. Cain , Catherine M. Krupka , David T. McIndoe , Mark D. Sherrill , R. Michael Sweeney, Jr.
    Location:
    USA
    Firm:
    Eversheds Sutherland (US) LLP
    To assume or not to assume, that is the question: what act constitutes “assumption” under section 365(d)(4) of the Bankruptcy Code?
    2014-05-29

    Under section 365(d)(4) of the Bankruptcy Code, an unexpired lease of nonresidential real property is automatically deemed rejected if a debtor-lessee does not assume such lease within 120 days of its bankruptcy filing, or within 210 days with court permission.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, Debtor, United States bankruptcy court
    Location:
    USA
    Firm:
    Weil Gotshal & Manges LLP
    Creditor standing to bring third-party actions outside bankruptcy proceedings
    2014-05-23

    Introduction
    Background

    Third Circuit's majority opinion
    Dissent
    Analysis
    Successor claims as property of the estate

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Caplin & Drysdale, Chartered, Bankruptcy
    Authors:
    Ronald E Reinsel , Rita C Tobin
    Location:
    USA
    Firm:
    Caplin & Drysdale, Chartered
    U.S. District Court reaffirms distressed debt funds not eligible assignees under loan agreement
    2014-05-27

    A recent decision by the U.S. District Court for the Western District of Washington found that certain distressed debt funds were not “financial institutions” under the definition of “Eligible Assignee” in the applicable loan agreement and thus were not entitled to vote on the debtor’s chapter 11 plan of reorganization. The District Court decision affirmed a bankruptcy court decision enjoining loan assignments to the funds and recently denied the funds’ motion to vacate the decision.”1

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Pillsbury Winthrop Shaw Pittman LLP, Debtor, Distressed securities, United States bankruptcy court, US District Court for Western District of Washington
    Authors:
    Douglas J. Schneller , Bart Pisella , Timothy P. Kober
    Location:
    USA
    Firm:
    Pillsbury Winthrop Shaw Pittman LLP
    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

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