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    Does a single "or" excommunicate congressional intent from the Bankruptcy Code? Supreme Court to resolve Circuit split on credit bidding
    2011-12-13

    The U.S. Supreme Court will rule this term in RadLAX Gateway Hotel Inc. v. Amalgamated Bank on whether the Bankruptcy Code permits a debtor in a chapter 11 case to sell encumbered assets without providing the secured lender an opportunity to credit bid its debt. Determination of this question will require the Court essentially to choose between two opposing approaches to statutory interpretation, and decide whether the so-called “plain meaning” of a highly formalistic reading of the Bankruptcy Code should trump decades of established commercial practice.   

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Kelley Drye & Warren LLP, Debtor, Debt, US Congress
    Authors:
    Benjamin D. Feder
    Location:
    USA
    Firm:
    Kelley Drye & Warren LLP
    US Supreme Court grants certiorari in Radlax Gateway Hotel, LLC v. Amalgamated Bank
    2011-12-13

    Section 1129(b)(2)(A)(iii) of the Bankruptcy Code allows a court to find that a chapter 11 “cramdown” plan is “fair and equitable” to an objecting class of secured creditors if the plan provides for the realization by such holders of the “indubitable equivalent” of their claims. Section 1129(b)(2)(A)(ii), through reference to Section 363(k), permits the sale of collateral free and clear of liens if secured creditors are allowed to “credit bid”—that is, to bid the value of their claim in an auction of the collateral.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Mayer Brown, Supreme Court of the United States, Seventh Circuit
    Authors:
    Dan Himmelfarb
    Location:
    USA
    Firm:
    Mayer Brown
    Insolvency exclusion bars coverage for claims due to underfunded employee benefit plans
    2011-12-07

    A federal district court, applying Pennsylvania law, has held that the insolvency exclusion in an insurance agency’s professional liability policy excused the insurer from the duty to defend the agency in lawsuits alleging that it had caused employee benefit plans that it created to be underfunded.  ACE Capital Limited v. Morgan Waldon Ins. Management, LLC, Civil Action No. 11-128, 2011 WL 5914275 (W.D. Pa. Nov. 28, 2011).

    Filed under:
    USA, Pennsylvania, Employee Benefits & Pensions, Insolvency & Restructuring, Insurance, Litigation, Wiley Rein LLP
    Location:
    USA
    Firm:
    Wiley Rein LLP
    English court upholds enforcement of Australian judgment against insolvent reinsurer
    2011-12-08

    An English appellate court permitted an Australian reinsurer in liquidation to enforce a judgment entered in Australian insolvency proceedings against a Lloyd’s syndicate, which had elected not to participate in the foreign proceedings. On appeal, the syndicate argued that England’s reciprocity act did not apply to foreign judgments made in insolvency proceedings, and that England’s insolvency act, which recognizes Australian courts, should be interpreted as strictly permitting only Australian choice of law, rather than the enforcement of Australian judgments.

    Filed under:
    USA, Insolvency & Restructuring, Insurance, Litigation, Jorden Burt LLP, Reinsurance, Liquidation
    Authors:
    Michael Wolgin
    Location:
    USA
    Firm:
    Jorden Burt LLP
    Secured creditors should attach evidence of perfection of their security interest in filing proofs of claim
    2011-12-08

    New bankruptcy forms and rules that took effect December 1, 2011, require secured creditors either to attach evidence of perfection of their security interest to the proof of claim form that they file, or attach a statement of why the documents are not available.

    Filed under:
    USA, Insolvency & Restructuring, Sherman & Howard LLC, Bankruptcy, Debtor, Secured creditor
    Location:
    USA
    Firm:
    Sherman & Howard LLC
    New York continues legislative process regarding the treatment of qualified financial contracts under insurance insolvencies
    2011-12-08

    On 30 November 2011, New York Senate Bill 2713A was delivered to the desk of Governor Andrew Cuomo for signature. If signed by the Governor, the bill will add provisions to the New York Insurance Law regarding the treatment of qualified financial contracts in an insurance insolvency proceeding. “Qualified financial contracts” include derivatives, securities lending, repurchase agreements, futures contracts and other financial instruments. These contracts are typically documented under master agreements providing for netting of obligations between the parties.

    Filed under:
    USA, New York, Insolvency & Restructuring, Insurance, Mayer Brown
    Authors:
    Martin Mankabady , Lawrence R. Hamilton , David W. Alberts , Annemarie Payne
    Location:
    USA
    Firm:
    Mayer Brown
    What does the American Airlines' chapter 11 filing mean for creditors?
    2011-12-08

    On November 29, 2011, AMR Corporation, the parent company of American Airlines and American Eagle, and certain of its U.S. affiliates, including American Airlines and American Eagle, filed voluntary petitions for chapter 11 reorganization in the U.S. Bankruptcy Court for the Southern District of New York.

    Filed under:
    USA, Aviation, Insolvency & Restructuring, Calfee Halter & Griswold LLP, Bankruptcy, Debtor, Liquidation, American Airlines, United States bankruptcy court
    Authors:
    Jean R. Robertson , James M. Lawniczak , Gus Kallergis
    Location:
    USA
    Firm:
    Calfee Halter & Griswold LLP
    Timely topics
    2011-12-08

    A “fraudulent conveyance” connotes to the layperson an intentional effort to defraud someone, but in bankruptcy law this is just one type of fraudulent conveyance. Another type, sometimes referred to as constructive fraud, involves a transfer for less than “reasonably equivalent value” or, in other words, a “gift.” In bankruptcy proceedings, a trustee is chosen to administer the debtor’s estate and, to the extent feasible, to “avoid” transfers of the debtor’s assets out of the estate that place assets beyond the creditors’ reach.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Non-profit Organizations, Holland & Knight LLP, Bankruptcy, Debtor
    Authors:
    Nathan A. Adams IV , Noel Robert Boeke
    Location:
    USA
    Firm:
    Holland & Knight LLP
    Is Chapter 9 the next chapter in the municipal saga?
    2011-12-06

    Fallout from the Great Recession continues to figure prominently in world headlines, as governments around the globe struggle to implement or extend programs designed to jumpstart stalled economies and attempt to gauge the health of financial institutions deemed “too big to fail” or otherwise critical to long-term prospects for recovery.

    Filed under:
    USA, Insolvency & Restructuring, Public, Jones Day
    Location:
    USA
    Firm:
    Jones Day
    Toledo solar firms confident amid industry uncertainty
    2011-12-06

    Toledo solar firms First Solar Inc., Xunlight Corp., and Willard & Kelsey LLC are still confident their operations will survive despite predictions from the chief executive of China’s Trina Solar Ltd.

    Filed under:
    USA, Energy & Natural Resources, Insolvency & Restructuring, Bricker & Eckler LLP
    Authors:
    Christopher M. Montgomery
    Location:
    USA
    Firm:
    Bricker & Eckler LLP

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