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    Drafting error deprives creditors of benefit of bankruptcy estate assets
    2008-09-03

    The Fifth Circuit recently issued an opinion addressing an important issue with respect to the preservation of a debtor's causes of action in a Chapter 11 plan of reorganization. The Fifth Circuit held that a reorganized debtor lacked standing to pursue certain common-law claims that were based on the pre-confirmation management of the bankruptcy estate's assets.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White & Case LLP, Bankruptcy, Debtor, Unsecured debt, Breach of contract, Fraud, Fiduciary, Limited liability company, Res judicata and issue estoppel, Standing (law), Negligence, Liquidation, Common law, Collateral estoppel, Title 11 of the US Code, United States bankruptcy court, Fifth Circuit
    Location:
    USA
    Firm:
    White & Case LLP
    Has the disturbance to the claims trading markets been quelled?
    2007-11-14

    Many participants in the multibillion-dollar distressed-debt trading markets were hoping that Federal District Court Judge Shira A. Scheindlin would permit expedited review of her ruling immunizing a purchaser of a claim against a debtor in bankruptcy from objections to the claim based upon the conduct of a prior holder of the claim.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White & Case LLP, Bankruptcy, Debtor, Debt, Remand (court procedure), Distressed securities, United States bankruptcy court
    Location:
    USA
    Firm:
    White & Case LLP
    State court may not prohibit receivership defendant from filing for bankruptcy
    2007-02-28

    In re Corporateand Leisure Event Productions, Inc.,1 the Bankruptcy Court for the District of Arizona held that a state court lacks the power to enter an order in a receivership proceeding preventing the receivership defendant from filing a petition in bankruptcy.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White & Case LLP, Bankruptcy, Shareholder, Debtor, Injunction, Fraud, Bright-line rule, Common law, Exclusive jurisdiction, Title 11 of the US Code, United States bankruptcy court
    Location:
    USA
    Firm:
    White & Case LLP
    Second Circuit: new Parmalat liable for old Parmalat "Frankenstein" suits
    2008-09-03

    On July 22, 2008, the US Court of Appeals for the Second Circuit affirmed denial of the motion of Parmalat S.p.A. ("New Parmalat") to extend an injunction provided to its predecessor, Parmalat Finanziaria, S.p.A., under Bankruptcy Code section 304, against securities fraud actions.1 Although the appeal addressed the issue of injunction in the context of superseded Bankruptcy Code section 304, this decision and the underlying lower court opinion signify other issues of broader import, including the need for careful plan drafting and the complexities inherent in cross-border cases.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, White Collar Crime, White & Case LLP, Bankruptcy, Unsecured debt, Injunction, Fraud, Class action, Debt, Liquidation, Comity, Joint-stock company, Securities fraud, Second Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    White & Case LLP
    Claims trading: can "bad acts" of the original creditor prevent the allowance of a claim sold to a third party?
    2007-10-04

    According to a recent decision by the United States District Court for the Southern District of New York,1 a claim sold post-petition is not subject to equitable subordination based solely on the original claimholder's conduct. Likewise, a claim sold post-petition cannot be disallowed based on the original claimholder's receipt of (and failure to repay) an avoidable transfer.

    Background

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White & Case LLP, Bankruptcy, Debtor, Disability, Title 11 of the US Code, Citibank, Enron, United States bankruptcy court
    Location:
    USA
    Firm:
    White & Case LLP
    Fifth Circuit emphasizes harm to other creditors as requirement for equitable subordination
    2008-07-14

    In a recent case,1 the Fifth Circuit emphasized its rule that a creditor's claim may be equitably subordinated to the claims of other creditors only to the extent necessary to offset the harm that the other creditors have suffered, based on specific findings and conclusions.

    Background

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White & Case LLP, Shareholder, Debtor, Unsecured debt, Collateral (finance), Debt, Intangible asset, Default (finance), Secured creditor, Secured loan, Title 11 of the US Code, United States bankruptcy court, Fifth Circuit
    Location:
    USA
    Firm:
    White & Case LLP
    Fourth Circuit sifts circumstances to deny a creditor any claim against a debtor where creditor received partial payment from a guarantor
    2007-10-04

    In National Energy & Gas Transmission, Inc. v. Liberty Electric Power, LLC (In re National Energy & Gas Transmission, Inc.),1 the Fourth Circuit held that, where an unsecured creditor receives payment from a non-debtor guarantor in partial satisfaction of a claim against the debtor, for purposes of the creditor's claim against the debtor, the creditor may not choose to allocate such payment to post-petition interest.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White & Case LLP, Bankruptcy, Costs in English law, Surety, Debtor, Natural gas, Interest, Debt, Coal, Electricity, Electricity generation, Unsecured creditor, United States bankruptcy court, Fourth Circuit
    Location:
    USA
    Firm:
    White & Case LLP
    US Bankruptcy Court Enforces CDO Transaction Flip Clauses
    2017-05-08

    This article was published in a slightly different form in the November 2016 issue of Futures & Derivatives Law by The Journal on the Law of Investment & Risk Management Products.

    Introduction

    Filed under:
    USA, Derivatives, Insolvency & Restructuring, Litigation, White & Case LLP, United States bankruptcy court
    Authors:
    Ian Cuillerier , David Thatch , Rhys Bortignon
    Location:
    USA
    Firm:
    White & Case LLP
    Is getting US recognition of an off-shore fund insolvency proceeding now almost impossible?
    2008-07-14

    The November/December 2007 issue of Insolvency Notes featured an article highlighting a Manhattan-based federal bankruptcy court's refusal to officially recognize proceedings commenced in the Cayman Islands to liquidate two Bear Stearns-managed hedge funds that collapsed in June of that year.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Private Client & Offshore Services, White & Case LLP, Bankruptcy, Debtor, Consumer protection, Limited liability company, Hedge funds, Liquidation, Comity, Liquidator (law), Title 11 of the US Code, Facebook, Bear Stearns, United States bankruptcy court
    Location:
    USA
    Firm:
    White & Case LLP
    Second Circuit denies a creditors' committee standing to pursue an equitable subordination claim in bankruptcy
    2007-10-04

    In Official Committee of Unsecured Creditors v. Halifax Fund, L.P. (In re Applied Theory Corp.),1 the Second Circuit, in a per curiam opinion, held that an official committee of unsecured creditors (the "Committee"), under the circumstances, did not have the right to commence an adversary proceeding seeking the equitable subordination of claims held by insiders of a Chapter 11 debtor. The Applied Theory court rebuffed the Committee's characterization of its claim as a direct claim that the Committee could prosecute without the bankruptcy court's permission.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White & Case LLP, Bankruptcy, Debtor, Unsecured debt, Interest, Consideration, Standing (law), Bright-line rule, Unsecured creditor, Derivative suit, Secured loan, Title 11 of the US Code, Second Circuit, United States bankruptcy court, Seventh Circuit, Trustee
    Location:
    USA
    Firm:
    White & Case LLP

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