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    Second Circuit settles the meaning of settlement payments under section 546(e) of the Bankruptcy Code
    2011-12-06

    The powers and protections granted to a bankruptcy trustee or chapter 11 debtor in possession under the Bankruptcy Code are numerous and far-reaching.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day
    Location:
    USA
    Firm:
    Jones Day
    WaMu confirmation denied: interest rates, equitable disallowance, and insider trading
    2011-12-06

    InIn re Washington Mutual, Inc., 2011 WL 4090757 (Bankr. D. Del. Sept. 13, 2011), Judge Mary F. Walrath of the U.S. Bankruptcy Court for the District of Delaware denied confirmation of the debtors’ proposed chapter 11 plan and instead referred the litigants to mediation in order to move the case toward a confirmable resolution.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Jones Day, Insider trading
    Location:
    USA
    Firm:
    Jones Day
    Another blow to triangular setoff in bankruptcy: “synthetic mutuality” no substitute for the real thing
    2011-12-06

    On October 4, 2011, Judge James M. Peck of the U.S. Bankruptcy Court for the Southern District of New York ruled in In re Lehman Bros. Inc., 2011 WL 4553015 (Bankr. S.D.N.Y. Oct. 4, 2011), that a “triangular setoff” does not satisfy the Bankruptcy Code’s mutuality requirement and that the Bankruptcy Code’s safe-harbor provisions do not eliminate that requirement in connection with setoffs under financial contracts.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Jones Day
    Location:
    USA
    Firm:
    Jones Day
    Final rules on living wills: prepare for your own demise
    2011-12-06

    The Federal Reserve announced the approval of a final rule to implement the Dodd-Frank resolution plan requirement set forth in Section 165(d) (the “Final Rule”). The Final Rule requires bank holding companies with assets of $50 billion or more and nonbank financial firms designated by the Financial Stability Oversight Council to annually submit resolution plans to the Federal Reserve and the FDIC.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Morrison & Foerster LLP, Bank holding company, Federal Deposit Insurance Corporation (USA), Federal Reserve (USA), Financial Stability Oversight Council, Dodd-Frank Wall Street Reform and Consumer Protection Act 2010 (USA)
    Authors:
    Dwight Smith , Alexandra Steinberg Barrage
    Location:
    USA
    Firm:
    Morrison & Foerster LLP
    “Universal rule”: trademark licenses not assignable in bankruptcy absent express authorization
    2011-12-06

    Two fundamental goals of chapter 11 of the Bankruptcy Code are rehabilitating a debtor’s business and maximizing the value of the debtor’s estate for the benefit of various stakeholders.

    Filed under:
    USA, Insolvency & Restructuring, Trademarks, Jones Day
    Location:
    USA
    Firm:
    Jones Day
    The U.S. federal judiciary
    2011-12-06

    U.S. federal courts have frequently been referred to as the “guardians of the Constitution.”

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day
    Location:
    USA
    Firm:
    Jones Day
    Primer for construction bankruptcies
    2011-12-07

    In general, a company has two bankruptcy alternatives: liquidation under Chapter 7 and reorganization under Chapter 11.

    Under Chapter 7, upon the filing of a bankruptcy petition, a trustee is appointed to gather and sell all of the debtor’s assets as quickly as possible. Once the trustee liquidates all of the assets, it must pay creditors in accordance with the priority scheme mandated by the Bankruptcy Code:

    Filed under:
    USA, Construction, Insolvency & Restructuring, Mintz, Bankruptcy, Debtor, Breach of contract
    Authors:
    Samuel M. Tony Starr
    Location:
    USA
    Firm:
    Mintz
    Fighting an overstated mechanic's lien: a simpler solution
    2011-12-07

    In a depressed economy wrought with defaulting developers, a lender in California facing a lien priority challenge should evaluate whether it would be worthwhile to secure a first priority position for its deed of trust through law and motion practice.

    Filed under:
    USA, California, Construction, Insolvency & Restructuring, Litigation, Real Estate, Miller Starr Regalia, Deed of trust (real estate)
    Location:
    USA
    Firm:
    Miller Starr Regalia
    No costs allowed to petitioner who challenged a sales tax assessment
    2011-12-05

    A New York State Administrative Law Judge has denied an application for costs and fees filed by a petitioner who had succeeded in substantially reducing the asserted tax liability through settlement. Matter of Frank M. Grillo, DTA No. 823237 (N.Y.S. Div. of Tax App., Nov. 3, 2011). The decision turned on whether the position of the Department of Taxation and Finance was substantially justified, and that, in turn, depended upon whether the Department had used the correct address when it sent the Notice of Determination to the petitioner.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Tax, Morrison & Foerster LLP, Title 11 of the US Code, Administrative law judge, Chief operating officer, United States bankruptcy court
    Authors:
    Hollis L. Hyans
    Location:
    USA
    Firm:
    Morrison & Foerster LLP
    Tell it to the clerk… a practical refresher on confession of judgment provisions
    2011-12-05

    In today’s lending climate, confession of judgment provisions (“COJ Provisions”) have become a fact of life for the Virginia banker.  Indeed, as troubled loans become more prevalent, a properly drafted COJ Provision can often be a creditor’s best friend.  No longer can we afford to lump COJ Provisions into that fuzzy “boilerplate” category that we so easily gloss over.  More and more bankers are coming to the realization that a COJ Provision is one of the most powerful tools a creditor can have against a defaulting debtor. 

    Filed under:
    USA, Virginia, Banking, Insolvency & Restructuring, Litigation, Williams Mullen, Debtor, Default (finance)
    Authors:
    Jamie W. Bruno
    Location:
    USA
    Firm:
    Williams Mullen

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