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    Bankruptcy rule changes take effect
    2007-12-11

    Amendments to the Federal Rules of Bankruptcy Procedure (the “Rules”) became effective on December 1, 2007, after having been approved by the U.S. Supreme Court in April and transmitted to Congress in June. These amendments, which apply to cases already pending on December 1, 2007 as well as cases filed thereafter, make some significant changes that will directly impact debtors, creditors and other stakeholders.

    Filed under:
    USA, Insolvency & Restructuring, Jones Day, Bankruptcy, Debtor, Collateral (finance), Substantive due process, United States bankruptcy court
    Location:
    USA
    Firm:
    Jones Day
    First ruling: new Section 1104(e) may not be a ticking time bomb after all
    2007-12-11

    A fundamental premise of chapter 11 is that a debtor’s prebankruptcy management is presumed to provide the most capable and dedicated leadership for the company and should be allowed to continue operating the company’s business and managing its assets in bankruptcy while devising a viable business plan or other workable exit strategy. The chapter 11 “debtor-in-possession” (“DIP ”) is a concept rooted strongly in modern U.S. bankruptcy jurisprudence. Still, the presumption can be overcome.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Shareholder, Debtor, Security (finance), Fraud, Fiduciary, Misconduct, Consideration, Liability (financial accounting), Liquidation, US Department of Justice, Trustee, United States bankruptcy court
    Location:
    USA
    Firm:
    Jones Day
    Creditors’ committee lacks standing to seek equitable subordination
    2007-12-11

    The power to alter the relative priority of claims due to the misconduct of one creditor that causes injury to others is an important tool in the array of remedies available to a bankruptcy court in exercising its broad equitable powers. However, unlike provisions in the Bankruptcy Code that expressly authorize a bankruptcy trustee or chapter 11 debtor-in-possession (“DIP ”) to seek the imposition of equitable remedies, such as lien or transfer avoidance, the statutory authority for equitable subordination—section 510(c)—does not specify exactly who may seek subordination of a claim.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Shareholder, Debtor, Fiduciary, Interest, Misconduct, Misrepresentation, Standing (law), Title 11 of the US Code, Trustee, Second Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Jones Day
    Protection for “personally identifiable information” in bankruptcy sales
    2007-12-05

    The nature of online commerce requires the collection of information from individuals to identify the parties to individual transactions, transfer funds for payment, and ensure the delivery of the goods or services being acquired. Public concern about the potential for abuse of such information by online merchants gave rise to the development of so-called "privacy policies" that provide a measure of reassurance that information collected will be protected from unauthorized use and disclosure.

    Filed under:
    USA, Insolvency & Restructuring, Internet & Social Media, Litigation, Wiley Rein LLP, Bankruptcy, Debtor, Consumer protection, Personally identifiable information, Consideration, Consumer privacy, Social Security number, Federal Trade Commission (USA), US Congress, US Code, Title 11 of the US Code, United States bankruptcy court
    Location:
    USA
    Firm:
    Wiley Rein LLP
    Appeals court orders immediate payment of DIP lender's commitment and facility funding fees
    2007-11-28

    District Judge James D. Zagel of the United States District Court for the Northern District of Illinois on Nov. 9, 2007, ordered a Chapter 11 debtor-in-possession ("DIP") to "immediately" pay its so-called "commitment" and "DIP Facility Funding" fees. ("Loan Fees"). Arlington LF, LLC, v. Arlington Hospitality, Inc., 2007 WL 3334499 (N.D. Ill. 11/9/07). Reversing the bankruptcy court, the district court held that the DIP was not excused from paying the fees despite the lender's earlier refusal to advance further funds on its $6 million revolving loan agreement ("Revolver"). Id. at 5.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Debtor, Interim order, Breach of contract, Interest, Investment banking, Default (finance), Attorney's fee, United States bankruptcy court
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Solutia bankruptcy court decision limits secured creditors’ recoveries
    2007-11-28

    In a recent decision1 in a claims objection proceeding in the Solutia chapter 11 case, the Bankruptcy Court for the Southern District of New York set clear limits on the allowance of secured claims.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Bankruptcy, Debtor, Collateral (finance), Waiver, Board of directors, Interest, Debt, Maturity (finance), Default (finance), United States bankruptcy court
    Location:
    USA
    Firm:
    Paul, Weiss, Rifkind, Wharton & Garrison LLP
    Prepetition unsecured creditor defeats objection to claim for post-petition attorneys' fees
    2008-01-24

    In Travelers Casualty & Surety Co. of America v. Pacific Gas & Electric Company, the Supreme Court held that federal bankruptcy law does not automatically disallow claims for post-petition attorneys' fees incurred by a prepetition unsecured creditor simply because such fees are incurred in litigating issues arising under the Bankruptcy Code. The Court, however, left open the issue whether such claims may be disallowed on the basis that the attorneys' fees were incurred post-petition.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White & Case, Bankruptcy, Surety, Debtor, Unsecured debt, Remand (court procedure), Unsecured creditor, Supreme Court of the United States, Ninth Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    White & Case
    Creditor revives $110 million claim against a released guarantor
    2008-01-24

    Creditors often compromise disputed claims against debtors and their guarantors. In connection with the settlement of claims against a debtor and its guarantor, the creditor may give the debtor and the guarantor written releases from further liability in exchange for a settlement payment. But what if the creditor later surrenders a portion of the payment in settlement of a preference recovery action? Can the creditor revive the guarantee notwithstanding the release?

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White & Case, Bankruptcy, Surety, Debtor, National Insurance, Consideration, Liability (financial accounting), Remand (court procedure), Ninth Circuit, United States bankruptcy court, Bankruptcy Appellate Panel
    Location:
    USA
    Firm:
    White & Case
    Oversecured lender awarded post-petition interest at contractual default rate plus compounded interest
    2008-01-23

    The United States Bankruptcy Court for the Southern District of New York recently awarded an oversecured lender post-petition interest on the full amount of its secured claim at the default rate set forth in the lender’s contract (19%) plus compound (PIK) interest up to the aggregate rate of 25% (the maximum rate allowable under New York State usury laws). In re Urban Communicators PCS Limited Partnership, et al., 2007 Bankr. LEXIS 4062 (Bankr. S.D.N.Y. 12/11/07) (Gerber, B.J.).

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Bankruptcy, Shareholder, Debtor, Collateral (finance), Interest, Federal Reporter, Default (finance), Accrued interest, Secured loan, Compound interest, Federal Communications Commission (USA), United States bankruptcy court, US District Court for the Southern District of New York
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Bankruptcy asset sales
    2008-01-19

    The Bankruptcy Code facilitates asset sales in chapter 11 by offering incentives to buyers and flexibility in structuring and timing the sale. A buyer can acquire assets free and clear of liens and is permitted to "cherry-pick" the debtor's contracts and leases to select only those it wants to keep. The assets and sale process can be structured in many ways, including auctions, private sales, lot or bulk sales, and going concern transactions.

    The Key Parties

    Filed under:
    USA, Insolvency & Restructuring, Wiley Rein LLP, Corporate governance, Bankruptcy, Debtor, Unsecured debt, Security (finance), Interest, Liquidation, Title 11 of the US Code, United States bankruptcy court
    Location:
    USA
    Firm:
    Wiley Rein LLP

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