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    The Devil (Dog) ® is in the details: Bankruptcy Court denies hostess’s motion to reject collective bargaining agreements on narrow factual grounds
    2012-06-08

    The recent bankruptcy case of Hostess has centered on Hostess’s attempts to reject collective bargaining agreements with its unions.  Hostess has emphasized that realigning labor costs is essential to its ability to successfully reorganize.  Section 1113 of the Bankruptcy Code sets forth detailed requirements that a debtor must meet to modify or reject CBAs.  Bankruptcy courts’ ultimate decision to authorize rejection of a CBA frequently turns on a detailed examination of the evidence presented in support of the rejection motion.

    Filed under:
    USA, Employment & Labor, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Collective bargaining agreements, United Steelworkers, NLRA, United States bankruptcy court
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Second Circuit finds Anderson News pleading is plausible... enough
    2012-06-11

    Admonishing that motions to dismiss for failure to state a claim must be decided based on whether a plaintiff's complaint is plausible rather than how plausible it is, which was the district's view in granting a dismissal motion, the Second Circuit, in Anderson News, L.L.C. v. American Media, Inc.,[1] declared improper the district court's denial of leave to file a proposed amended complaint and vacated the dismissal.  

    Filed under:
    USA, Competition & Antitrust, Insolvency & Restructuring, Litigation, Media & Entertainment, Greenberg Traurig LLP, Second Circuit
    Location:
    USA
    Firm:
    Greenberg Traurig LLP
    KB toys: Delaware Bankruptcy Court weighs in on claims trading
    2012-06-11

    On May 4, 2012 Judge Kevin J. Carey of the U.S. Bankruptcy Court for the District of Delaware held that a claim against a debtor’s estate, transferred to a third party, is subject to the same infirmities as in the hands of the original holder of the claim.  In re KB Toys, Inc., — B.R. —-, 2012 WL 1570755, at *11 (Bankr. D. Del. 2012).  Judge Carey’s opinion diverged from, and criticized, the decision of the U.S. District Court for the Southern District of New York in Enron Corp. v. Springfield Assocs., L.L.C., 379 B.R. 425 (S.D.N.Y.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Debtor, United States bankruptcy court, US District Court for District of Delaware
    Authors:
    Andrew M. Greenberg , Michele C. Maman
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Fraudulent transfer risk expanded: In re TOUSA: Eleventh Circuit expands fraudulent transfer risk for lenders to distressed borrowers
    2012-06-11

    SUMMARY

    Filed under:
    USA, Florida, Insolvency & Restructuring, Litigation, Sullivan & Cromwell LLP, Debtor, Debt, Refinancing, United States bankruptcy court, Eleventh Circuit
    Location:
    USA
    Firm:
    Sullivan & Cromwell LLP
    Supreme Court holds that free and clear sale plan cannot be confirmed without preserving secured creditor’s credit bidding rights
    2012-06-11

    On May 29, 2012, the Supreme Court in In RadLAX Gateway Hotel, LLC (“RadLAX”) held that a Chapter 11 reorganization plan that proposes the sale of encumbered assets free and clear of liens must honor the secured creditor’s right to credit bid its claim in order to be confirmed under the “fair and equitable” standard of the Bankruptcy Code.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Greenberg Traurig LLP, Credit (finance), Debtor, Collateral (finance), Secured creditor, Secured loan
    Authors:
    John Hutton
    Location:
    USA
    Firm:
    Greenberg Traurig LLP
    Supreme Court upholds secured creditor’s right to credit bid in a bankruptcy case
    2012-06-04

    The United States Supreme Court emphatically upheld a secured creditor’s right to credit bid in bankruptcy cases. In RadLAX Gateway Hotel, et al. v. Amalgamated Bank, 566 U.S.___ (May 29, 2012), the Court found the case an "easy" one to resolve: when a secured creditor is denied the right to credit bid its debt in the sale of its collateral as a part of a bankruptcy plan, it will not receive the "indubitable equivalent" of its secured claim in the form of cash generated from the sale. The Court's unanimous decision should help restore certainty in lending.

    Filed under:
    USA, Banking, Derivatives, Insolvency & Restructuring, Litigation, Reed Smith LLP, Bankruptcy, Collateral (finance), Secured creditor, Supreme Court of the United States
    Authors:
    Bernard P. Simons
    Location:
    USA
    Firm:
    Reed Smith LLP
    Rescap seeks automatic bankruptcy stay of 27 MBS suits
    2012-06-04

    On May 25, 2012, Residential Capital LLC (“ResCap”) filed a complaint in United States Bankruptcy Court for the Southern District of New York seeking declaratory and injunctive relief to extend the automatic stay over 27 MBS lawsuits against it, its affiliates, and its executives while it undergoes bankruptcy restructuring.  ResCap alleges that all of the lawsuits against its non-debtor affiliates are inextricably connected to the debtor affiliates, and that such lawsuits will drain the debtors’ estates by forcing those entities to undergo extensive discovery and face significant indem

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Orrick, Herrington & Sutcliffe LLP, Injunction, United States bankruptcy court
    Location:
    USA
    Firm:
    Orrick, Herrington & Sutcliffe LLP
    Update of NAIC separate account initiatives
    2012-06-05

    Concerned about the use of separate accounts to fund products with general account guarantees, the NAIC continues to examine these products and to consider how these products and the underlying assets should be regulated and treated for insolvency purposes.

    Filed under:
    USA, Insolvency & Restructuring, Insurance, Jorden Burt LLP, National Association of Insurance Commissioners
    Authors:
    Ann Black , Jo Cicchetti
    Location:
    USA
    Firm:
    Jorden Burt LLP
    Supreme Court upholds secured creditors’ right to credit-bid
    2012-06-05

    The Court’s unanimous decision in RadLAX Gateway Hotel LLC v. Amalgamated Banksettles dispute over the credit-bid right, retaining this important creditor protection.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Morgan, Lewis & Bockius LLP, Debtor, Collateral (finance), Secured creditor
    Location:
    USA
    Firm:
    Morgan, Lewis & Bockius LLP
    Frenville – gone but not forgotten: Third Circuit prohibits retroactive application of Grossman’s
    2012-06-01

    The ability to discharge debts (i.e., liability on a claim) is essential to the fundamental goal of chapter 11 of the Bankruptcy Code – providing debtors with a fresh start by resolving all claims that arose before confirmation of the debtor’s plan of reorganization.  In determining the universe of debts eligible for discharge, Third Circuit courts labored for many years underAvellino v. M. Frenville Co. (In re M. Frenville Co.), 744 F.2d 332 (3d Cir.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Debtor, Ex post facto law, Debt, Title 11 of the US Code, Third Circuit
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP

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