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    Seventh Circuit rules that secured creditors must be given the right to credit-bid
    2011-10-13

    In a victory for secured creditors, the Seventh Circuit Court of Appeals recently held inRiver Road Hotel Partners, LLC v. Amalgamated Bank (In re River Road Hotel Partners, LLC), 2011 WL 2547615 (7th Cir. June 28, 2011), that a dissenting class of secured lenders cannot be deprived of the right to credit-bid its claims under a chapter 11 plan that proposes an auction sale of the lenders’ collateral free and clear of liens.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Credit (finance), Debtor, Collateral (finance), Interest, Federal Reporter, Limited liability company, Option (finance), Dissenting opinion, Secured creditor, Title 11 of the US Code, United States bankruptcy court, Fifth Circuit, Third Circuit, Seventh Circuit
    Authors:
    George R. Howard , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Insider’s compensation claim capped at zero under section 502(b)(4)
    2010-08-11

    The Bankruptcy Code treats insiders with increased scrutiny, from longer preference periods to rigorous equitable subordination principles, denial of chapter 7 trustee voting rights, disqualification in some cases of votes on a cram-down chapter 11 plan, and restrictions on postpetition key-employee compensation packages. The treatment of claims by insiders for prebankruptcy services is no exception to this general policy: section 502(b)(4) disallows insider claims for services to the extent the claim exceeds the "reasonable value" of such services.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Debtor, Legal burden of proof, Good faith, Subsidiary, United States bankruptcy court, Chief financial officer
    Authors:
    David G. Marks
    Location:
    USA
    Firm:
    Jones Day
    When do rights of first refusal constitute an unenforceable restriction on assignment in bankruptcy?
    2008-02-01

    In the chapter 1 1 cases of Adelphia Communications Corporation and its subsidiaries, Adelphia sought to assume and assign more than 2,000 franchise agreements in connection with the proposed transfer of its cable operations to affiliates of Comcast Corporation and Time Warner Cable. Numerous local franchising authorities objected, arguing, among other things, that they had a right of first refusal under the agreements, and in some cases also under a local ordinance, to purchase the franchise on substantially the same terms and conditions.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Shareholder, Conflict of laws, Debtor, Deed, Joint venture, Legal burden of proof, Debtor in possession, Right of first refusal, Title 11 of the US Code, Comcast, United States bankruptcy court
    Location:
    USA
    Firm:
    Jones Day
    The poison pill alternative to stock trading injunctions in Chapter 11
    2007-01-29

    The implementation of restrictions on stock and/or claims trading has become almost routine in large chapter 11 cases involving public companies on the basis that such restrictions are vital to prevent forfeiture of favorable tax attributes that can be triggered by a change in control. Continued reliance on stock trading injunctions as a means of preserving net operating loss carry forwards, however, may be problematic, after the controversial ruling handed down in 2005 by the Seventh Circuit Court of Appeals in In re UAL Corp.

    Filed under:
    USA, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Jones Day, Public company, Bond (finance), Bankruptcy, Shareholder, Debtor, Injunction, Board of directors, Taxable income, Debt, Liability (financial accounting), Internal Revenue Code (USA), United States bankruptcy court
    Location:
    USA
    Firm:
    Jones Day
    Chapter 11 plan payment of official committee members’ legal fees disallowed absent showing of substantial contribution
    2014-05-28

    In the March/April 2014 issue of Business Restructuring Review, we discussed a recent trend among bankruptcy courts in the Southern District of New York confirming chapter 11 plans containing provisions that treat the fees and expenses of unofficial committees or individual official committee members as administrative expenses without the need to demonstrate that the applicants made a “substantial contribution” to the estate, as required by sections 503(b)(3)(D) and 503(b)(4) of the Bankruptcy Code. See, e.g., In re AMR Corp., 497 B.R. 690 (Bankr. S.D.N.Y.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Jones Day, Title 11 of the US Code, Lehman Brothers, United States bankruptcy court
    Location:
    USA
    Firm:
    Jones Day
    Continued recession not “extraordinary circumstance” justifying modification of confirmed chapter 11 plan
    2013-01-31

    Affirming the bankruptcy court below in a case of first impression, in In re Caviata Attached Homes, LLC, 481 B.R. 34 (B.A.P. 9th Cir. 2012), a Ninth Circuit bankruptcy appellate panel held that a relapse into economic recession following a chapter 11 debtor’s emergence from bankruptcy was not an “extraordinary circumstance” that would justify the filing of a new chapter 11 case for the purpose of modifying the debtor’s previously confirmed plan of reorganization.

    Modification of a Confirmed Chapter 11 Plan

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Ninth Circuit, United States bankruptcy court, Fifth Circuit
    Location:
    USA
    Firm:
    Jones Day
    Proposed Chapter 11 venue legislation introduced
    2011-10-01

    A significant consideration in a prospective chapter 11 debtor's strategic prebankruptcy planning is the most favorable venue for the bankruptcy filing.

    Filed under:
    USA, Insolvency & Restructuring, Jones Day, Bankruptcy, Debtor, Consideration, Administrative law, Collective bargaining, Stakeholder (corporate), Forum shopping, US House of Representatives, US House Committee on the Judiciary, United States bankruptcy court, US District Court for District of Delaware
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    New U.S. Supreme Court rulings
    2010-08-11

    When a bankruptcy court calculates the "projected disposable income" in a repayment plan proposed by an above-median-income chapter 13 debtor, the court may "account for changes in the debtor's income or expenses that are known or virtually certain at the time of confirmation," the U.S. Supreme Court held in Hamilton v. Lanning on June 7. Writing for the 8-1 majority, Justice Samuel A.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Tax exemption, Bankruptcy, Debtor, Interest, Personal property, Dissenting opinion, Majority opinion, Title 11 of the US Code, SCOTUS, Ninth Circuit, United States bankruptcy court, Trustee
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Protecting the attorney-client privilege in corporate families
    2008-02-01

    The importance and practical benefits resulting from the use of the same in-house counsel for an entire corporate family are numerous. For example, the in-house attorneys are particularly familiar with the corporate family’s structure, can assist with joint public filings, and can expertly oversee the corporate family’s compliance with regulatory regimes. If a subsidiary in the corporate family becomes financially distressed, however, the creditors of the financially distressed entity may look to the parent corporation for recourse.

    Filed under:
    USA, Company & Commercial, Insolvency & Restructuring, Litigation, Jones Day, Bond (finance), Bankruptcy, Debtor, Fiduciary, Attorney-client privilege, Discovery, Misrepresentation, Motion to compel, Estoppel, Subsidiary, Bell Canada, United States bankruptcy court, Third Circuit
    Location:
    USA
    Firm:
    Jones Day
    Assessing the impact of the new Chapter 11 exclusivity deadline
    2007-01-29

    A debtor’s exclusive right to formulate and solicit acceptances for a plan of reorganization during the initial stages of a chapter 11 case is one of the most important benefits conferred under the Bankruptcy Code as a means of facilitating the successful restructuring of an ailing enterprise. By giving a chapter 11 debtor-in-possession time to devise a solution to balance sheet and operational problems without being burdened by the competing agendas of other stakeholders in the bankruptcy case, exclusivity levels the playing field, at least temporarily.

    Filed under:
    USA, Insolvency & Restructuring, Jones Day, Bankruptcy, Shareholder, Debtor, Interest, Debt, Standing (law), Liquidation, Good faith, Balance sheet, Exclusive right, Title 11 of the US Code, US Congress, United States bankruptcy court, Trustee
    Location:
    USA
    Firm:
    Jones Day

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