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    There’s no equity in law
    2014-04-08

    The Bottom Line:

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Amicus curiae, Title 11 of the US Code, Supreme Court of the United States, United States bankruptcy court
    Authors:
    Tuvia Peretz
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Seventh Circuit confirms the independence of the “settlement payment” and “securities contract” safe harbors of 11 U.S.C. § 546(e)
    2014-04-08

    The United States Court of Appeals for the Seventh Circuit (the “Seventh Circuit”) recently adopted a broad reading of the safe harbor of United States Bankruptcy Code (the “Bankruptcy Code”) § 546(e), which protects from avoidance “settlement payments” and transfers made in connection with a “securities contract,” among other transfers.1 In FCStone, the Seventh Circuit reversed the United States District Court for t

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, Hunton Andrews Kurth LLP, Security (finance), ING Group, Seventh Circuit
    Location:
    USA
    Firm:
    Hunton Andrews Kurth LLP
    U.S. Supreme Court subjects certain employment termination payments to FICA tax
    2014-04-08

    Hopes that certain severance payments paid by companies to terminated employees could escape application of the Federal Insurance Contributions Act (FICA) tax were dashed when a unanimous U.S. Supreme Court ruled on March 25th that such payments, when not tied to state unemployment benefits, were “wages,” and thus taxable. The ruling for the government will allow the IRS to disallow protective refund claims that numerous companies filed after a federal circuit court held that termination payments were not subject to FICA tax.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Tax, Greenberg Traurig LLP, Wage, Unemployment benefits, Federal Insurance Contributions Act tax, Severance package
    Authors:
    G. Michelle Ferreira , Scott E. Fink , Courtney A. Hopley
    Location:
    USA
    Firm:
    Greenberg Traurig LLP
    Debt fund enjoined from voting on chapter 11 plan because it is not a “financial institution” under assignment eligibility clause of loan agreement
    2014-04-10

    Assignees of Loan Only Entitled to One Collective Vote on Plan

    Filed under:
    USA, Washington, Banking, Insolvency & Restructuring, Litigation, Fried Frank Harris Shriver & Jacobson LLP, Injunction, Debt, Default (finance), Distressed securities, United States bankruptcy court
    Authors:
    Brad Eric Scheler , Gary L. Kaplan , Shannon Lowry Nagle , Alan N. Resnick , Jennifer L. Rodburg , Kalman Ochs
    Location:
    USA
    Firm:
    Fried Frank Harris Shriver & Jacobson LLP
    Liquidated damages provisions in contract did not bear rational relationship to damages from breach of agreement
    2014-04-10

    Purcell brought a lawsuit seeking to recover $85,000 he had lent to Schweitzer.  The parties settled, agreeing that Schweitzer would pay the sum of $38,000, along with interest at the rate of 8.5 percent, in installments over 24 months to Purcell.  The agreement provided that if Schweitzer failed to pay on time, it would be a breach of the entire agreement and the original liability of $85,000 would be due.  The agreement also contained the following language:

    The liquidated damages provision does not constitute an unlawful "penalty" or "forfeiture." 

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Liebert Cassidy Whitmore, Punitive damages, Breach of contract, Default judgment, Liquidated damages
    Location:
    USA
    Firm:
    Liebert Cassidy Whitmore
    Judge orders Bitcoin Mt. Gox CEO in Japan to come to Texas
    2014-04-03

    After filing for US bankruptcy protection in Texas based on aJapanese bankruptcy, the Judge ordered that Mt.

    Filed under:
    USA, Texas, Insolvency & Restructuring, Litigation, Foley & Lardner LLP, Bankruptcy, Bitcoin
    Authors:
    Peter S. Vogel
    Location:
    USA
    Firm:
    Foley & Lardner LLP
    Lenders' risk: who really owns the collateral?
    2014-04-03

    Unlike real estate transactions where a lender can obtain title insurance, secured lenders are often relying upon the representations and warranties in their loan agreement and the borrower’s audited financial statements, if and when determining whether the collateral securing their loans is owned by the borrower or another pledgor.  After default, a lender may find itself in a precarious position whereby it is unable to foreclose on the collateral because it is not owned by its borrower and it does not have a pledge from the person that actually does own the property.  According

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, Blank Rome LLP, Debtor, Collateral (finance), Title insurance
    Authors:
    Nikolaus J. Caro
    Location:
    USA
    Firm:
    Blank Rome LLP
    More fallout from Garlock ruling finding that asbestos plaintiff counsel withhold and “change” evidence
    2014-04-03

    ASBESTOS TRUSTS FIND “PATTERN” OF SUBMITTING UNRELIABLE EVIDENCE TO SUPPORT TRUST CLAIMS

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Gordon Rees Scully Mansukhani, Bankruptcy
    Authors:
    Richard R. Ames , Don Willenburg
    Location:
    USA
    Firm:
    Gordon Rees Scully Mansukhani
    Seventh Circuit reads bankruptcy safe harbor broadly to insulate preferential settlement payment to commodity broker
    2014-04-03

    The United States Court of Appeals for the Seventh Circuit, on March 19, 2014, held that a corrupt debtor’s pre-bankruptcy cash transfer to a commodity broker was a “settlement payment” made “in connection with a securities contract,” thus falling “within [Bankruptcy Code] §546(e)’s safe harbor” and insulating the transfer from the trustee’s preference claim. Grede v. FCStone, LLC (In re Sentinel Management Group, Inc.), 2014 WL 1041736, *7 (7th Cir. Mar. 19, 2014).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Bankruptcy, Debtor, Security (finance), Commodity broker, Hedge funds, Mutual fund, Seventh Circuit
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    $5.15 billion settlement for environmental liabilities – largest ever recovery
    2014-04-03

    Earlier today, April 3, 2014, the U.S. Department of Justice announced its largest ever environmental enforcement recovery case involving a $5.15 billion settlement, $4.4 billion of which will go to environmental cleanup and claims.

    Filed under:
    USA, Environment & Climate Change, Insolvency & Restructuring, Litigation, Spencer Fane LLP, US Department of Justice
    Authors:
    Andrew C. (Drew) Brought
    Location:
    USA
    Firm:
    Spencer Fane LLP

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