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    The absolute priority rule in individual Chapter 11 cases - The Eastern District of Wisconsin offers guidance
    2013-11-04

    The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) is the most recent significant amendment to the United States Bankruptcy Code. Many issues have arisen since its enactment. Of particular interest to those practicing in the Chapter 11 arena involves the absolute priority rule in individual Chapter 11 cases. Courts have split over whether an individual Chapter 11 debtor can confirm a plan of reorganization over the objections of unsecured creditors without regard to the absolute priority rule set forth in section 1129 of the Bankruptcy Code (Code).

    Filed under:
    USA, Wisconsin, Insolvency & Restructuring, Reinhart Boerner Van Deuren SC, Debtor, United States bankruptcy court
    Authors:
    Peter C. Blain
    Location:
    USA
    Firm:
    Reinhart Boerner Van Deuren SC
    Protection of collateral of counterparties to uncleared swaps; treatment of securities in a portfolio margining account in a commodity broker bankruptcy
    2013-11-04

    On October 30th, the Commodity Futures Trading Commission ("CFTC") adopted new final rules imposing requirements on swap dealers and major swap participants with respect to the treatment of collateral posted by their counterparties to margin, guarantee, or secure uncleared swaps.

    Filed under:
    USA, Derivatives, Insolvency & Restructuring, Winston & Strawn LLP, Collateral (finance), Security (finance), Swap (finance), Commodity broker, Commodity Futures Trading Commission (USA)
    Location:
    USA
    Firm:
    Winston & Strawn LLP
    Is there a bankruptcy lawyer in the house?
    2013-11-04

    When businesses pay for goods and services, they generally like to receive them.  Unfortunately, as any bankruptcy lawyer will tell you, this consistent desire is not matched by uniform experience.

    Filed under:
    USA, Insolvency & Restructuring, Reed Smith LLP, Bankruptcy, Fiduciary
    Authors:
    Mark D. Silverschotz , Douglas J. Wood
    Location:
    USA
    Firm:
    Reed Smith LLP
    Can a bankrupt franchisee assign its franchise without the franchisor’s consent?
    2013-11-05

    When a franchisee files for bankruptcy, a franchisor naturally has concerns over how the process will affect the parties’ relationship. Of particular concern is the possibility that the franchisor will be forced into a relationship with an unacceptable successor as a result of a bankruptcy judge’s decision to authorize assumption and assignment of the franchise agreement over the franchisor’s objection.

    Filed under:
    USA, Franchising, Insolvency & Restructuring, Litigation, Wiley Rein LLP, Default (finance), Debtor in possession, United States bankruptcy court
    Authors:
    Valerie P. Morrison
    Location:
    USA
    Firm:
    Wiley Rein LLP
    Bank has no obligation to inform borrower of bank’s impending failure
    2013-10-25

    One of the ironic issues for failing banks has been the fact that banks that they have had to continue to deal with their borrowers and depositors in the ordinary course of business even though they are already in the queue for resolution by the FDIC. So for example, loans continue to get renewed and documents executed. What happens if you renew a loan shortly before the bank fails, do you have some sort of defense to enforcement of the loan when the successor bank or the FDIC makes demand on you?

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Bryan Cave Leighton Paisner (Bryan Cave), Surety, Debtor, Fraud, Fiduciary, Federal Deposit Insurance Corporation (USA)
    Authors:
    Jerry Blanchard
    Location:
    USA
    Firm:
    Bryan Cave Leighton Paisner (Bryan Cave)
    Japanese parent liable for unfunded benefits in subsidiary employer’s plan
    2013-10-25

    An employer that sponsors a single-employer defined benefit pension plan was acquired by a Japanese parent.  The employer entered into bankruptcy and, as part of the proceedings, the Pension Benefit Guaranty Corporation (the “PBGC”) terminated the pension plan.  The PBGC then sought in federal court to recover the amount of the unfunded liability from the Japanese parent.  The PBGC also sought payment of the termination premium designed to be payable when a reorganizing company emerges from bankruptcy and to collect that premium from the parent.  The pare

    Filed under:
    USA, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Haynes and Boone LLP, Defined benefit pension plan, Pension Benefit Guaranty Corporation
    Location:
    USA
    Firm:
    Haynes and Boone LLP
    Detroit emergency manager expects DIA collection to bring revenue
    2013-10-14

    As the controversy around the possible sale of the Detroit Institute of Arts’ collectioncontinues to swirl, Emergency Manager Kevyn Orr has given some of his most pointed comments to date about his expectations.

    Filed under:
    USA, Insolvency & Restructuring, Media & Entertainment, Sullivan & Worcester LLP
    Authors:
    Nicholas O'Donnell
    Location:
    USA
    Firm:
    Sullivan & Worcester LLP
    Employer withdrawal liability dischargeable in bankruptcy
    2013-10-15

    In a recent Ninth Circuit case, Carpenters Pension Trust Fund for Northern California v. Moxley, 2013 WL 4417594 (9th Cir. 2013), the court held that an employer's withdrawal liability was dischargeable in bankruptcy. In this case, the employer filed for bankruptcy protection after the Pension Fund assessed withdrawal liability.

    Filed under:
    USA, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Reinhart Boerner Van Deuren SC, Bankruptcy, Ninth Circuit
    Location:
    USA
    Firm:
    Reinhart Boerner Van Deuren SC
    Debtor’s claim against lender and special servicer for breaching duty to act in good faith and to deal fairly survives motion to dismiss
    2013-10-15

    In Burcam Capital II, LLC v. Bank of America, N.A., et al, No. 13-00063-8 (Bankr. E.D. N.C. Oct. 1, 2013), an adversary proceeding filed in In re: Burcam Capital II, LLC, No. 12-04729-8, in the United States Bankruptcy Court for the Eastern District of North Carolina, the court held that the Debtor Plaintiff alleged sufficient facts to support a claim that its lender and the special servicer of the loan breached their duty to act in good faith and to deal fairly.

    Filed under:
    USA, North Carolina, Banking, Insolvency & Restructuring, Litigation, Alston & Bird LLP, Good faith, Bank of America, United States bankruptcy court
    Authors:
    Lorraine Sarles
    Location:
    USA
    Firm:
    Alston & Bird LLP
    That makes two for the FDIC: 11th Circuit Court of Appeals issues another precedential decision interpreting tax sharing agreements in bankruptcy, awards ownership of tax refund to FDIC
    2013-10-16

    The Bottom Line: 

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Tax, Kramer Levin Naftalis & Frankel LLP, Bankruptcy, Debtor, Federal Deposit Insurance Corporation (USA), Eleventh Circuit
    Authors:
    Daniel M. Eggermann
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP

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