The Bottom Line:

• On December 20, 2011, the South Carolina Public Service Commission (SC PSC) issued a scheduling order for AT&T South Carolina’s complaint against Halo Wireless. AT&T alleges that Halo, which filed for bankruptcy protection after AT&T initiated this action and similar complaints in several other states, was sending AT&T landline-originated traffic but refused to pay terminating access charges. AT&T also alleges that Halo has been manipulating call signaling information to hide the traffic’s true origin and to make it appear as wireless-originated traffic.

On Monday, December 12, 2011, Madoff trustee Irving Picard filed a lawsuit against Credit Suisse Group AG in the U.S. Bankruptcy Court in Manhattan alleging it and several of its affiliates harbored money that belonged to Madoff's estate.  Specifically, Picard is attempting to recover $375 million, representing funds that were deposited with Credit Suisse through two of Madoff's largest feeder funds, Fairfield Sentry Ltd.

Investors have agreed to settle securities claims against more than 30 underwriters who underwrote in excess of $31 billion in debt and equity offerings for Lehman Brothers, the collapse of which was a key chapter in the global financial crisis.  The plaintiffs in these actions alleged that the underwriters, which included Bank of America and units of Bank of New York Mellon, Citigroup and Wells Fargo, assisted Lehman Brothers in making misstatements about its finances prior to its implosion and eventual bankruptcy filing.  The proposed settlement still requires district court app

One of the concerns for creditors dealing with a distressed company is the possibility of bankruptcy, and the risk that payments to the creditor on account of previously incurred debt will be avoided as a "preference" in the debtor's bankruptcy proceeding. Generally speaking, a "preference" is a transfer of the debtor's property on the eve of bankruptcy to satisfy an old debt. The Bankruptcy Code allows a bankrupt company to reach back 90 days and avoid any transfers made to creditors during that time, subject to certain defenses.

Generic Legal Advice Memorandum AM 2011-003 (August 18, 2011)

Overview

Unless you are a specialized lender who makes loans to debtors-in-possession, you do not make a loan with the expectation that your borrower is going to file bankruptcy. Although the number of bankruptcy filings in California and nationally is trending slightly lower, filings remain at higher than normal levels. Nearly every lender has received the notice of a bankruptcy filing that was unexpected and then faced decisions as to what to do next.

In an Order issued yesterday by the Bankruptcy Court for the Southern District of Texas in the Omega Navigation Enterprises, Inc. (Omega) chapter 11 cases (the Show Cause Order), Judge Karen Brown has directed Omega’s Senior Lenders, Junior Lenders and Unsecured Creditors’ Committee to show cause whether they should be sanctioned for the conduct described in the Show Cause Order, a copy of which can be found HERE.

In the last several months, there have been some significant legal developments that could impact acquisition finance. This article will survey some of the more notable ones.

In a case with implications for buyers of assets in a bankruptcy court-ordered sale under section 363(b) of the Bankruptcy Code, the Bankruptcy Court for the Southern District of New York recently issued a decision limiting the ability of manufacturers that are debtors in a bankruptcy case to sell assets free and clear of future liabilities.

It finally happened. On 12 December 2011, New York Governor Andrew Cuomo signed Senate Bill 2713A into law. The bill, which was passed by the legislature in June, adds important provisions to the New York Insurance Law regarding the treatment of qualified financial contracts in an insurance insolvency proceeding.