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    Opinion Alert: Third Circuit Dismisses LTL Mass Tort Bankruptcy, Holding “Good Faith” Requires “Immediate” Financial Distress
    2023-01-30

    In a decision likely to have significant impact on certain types of bankruptcy filings going forward, this morning, the Third Circuit Court of Appeals ordered the dismissal of the Chapter 11 bankruptcy case filed by Johnson & Johnson affiliate LTL Management LLC.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Mayer Brown, United States bankruptcy court, Third Circuit
    Authors:
    Sean T. Scott , Aaron Gavant , Joshua R. Gross
    Location:
    USA
    Firm:
    Mayer Brown
    Sanofi v. Mallinckrodt: Delaware Decision Highlights Importance of Asset Sale Structures in Later Bankruptcy Proceedings
    2023-01-23

    In Sanofi-Aventis U.S. LLC v. Mallinckrodt PLC,1 the United States District Court for the District of Delaware ruled that a debtor that purchased intellectual property under a prepetition asset purchase agreement could continue to retain and use the property post-confirmation while discharging its obligations to pay any future royalties otherwise owed. The decision highlights the importance of structuring transactions up-front to minimize the consequences of future bankruptcies.

    Background

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Vinson & Elkins LLP, United States bankruptcy court, US District Court for District of Delaware
    Authors:
    David S. Meyer , William L. Wallander , Steven M. Abramowitz , Katherine Drell Grissel , Lucian Wang
    Location:
    USA
    Firm:
    Vinson & Elkins LLP
    Appellate Review of a Bankruptcy Court’s Preliminary Injunction
    2023-01-20

    Should a bankruptcy court’s preliminary injunction be subject to appellate review?Taking the negative position, the U.S. District Court for the Eastern District of New York recently held that it had the “discretion … to decline to hear” an appeal from a bankruptcy court’s preliminary injunction. Navient Solutions, LLC et al. v. Homaidan et al., 2022 WL 17252459, *4 (E.D.N.Y. Nov. 28, 2022), quoting In re Kassover, 343 F.3d 91, 95 (2d Cir.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Preliminary injunction, Supreme Court of the United States, United States bankruptcy court
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Bankruptcy Court Allows Service of a Subpoena Via Twitter
    2023-01-17

    When a court-appointed trustee or liquidator is tasked with liquidating an entity, they need to gain possession of all of the entity’s assets. In crypto cases, this task can prove difficult when trying to identify and control all of the entity’s different digital assets and obtain cooperation from the entity’s former operators. Unfortunately, in the case of Three Arrows Capital (“3AC”), the two founders have refused to cooperate with recovery efforts and have absconded to unknown foreign countries.

    Filed under:
    British Virgin Islands, USA, Banking, Insolvency & Restructuring, IT & Data Protection, Litigation, Squire Patton Boggs, Hedge funds, Liquidation, Cryptocurrency, United States bankruptcy court
    Authors:
    Kyle F. Arendsen
    Location:
    British Virgin Islands, USA
    Firm:
    Squire Patton Boggs
    Cryptocurrency Update: Crypto in Celsius “Earn” Accounts Are Property of Bankruptcy Estate, Not Customer Assets
    2023-01-12

    Judge Martin Glenn of the United States Bankruptcy Court for the Southern District of New York issued a ruling last week in the Celsius Network bankruptcy case addressing whether customer deposits on a cryptocurrency exchange or platform are property of the debtor or property of the customer. The answer, not surprisingly, depends on the Terms of Use governing the account in question. In this case, the Court found that the terms clearly and unambiguously provided that ownership of cryptocurrency assets deposited into “Earn Accounts” resides with Celsius.

    Filed under:
    USA, Banking, Insolvency & Restructuring, IT & Data Protection, Litigation, Schulte Roth & Zabel LLP, Cryptocurrency, United States bankruptcy court
    Authors:
    Douglas S. Mintz , Abbey Walsh , Peter J. Amend
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    My Crypto's Gone: Cryptocurrency in Earn Accounts Belong to Celsius Not Customers
    2023-01-09

    Cryptocurrency in Celsius’ Earn Accounts belongs to the bankruptcy estate, and not to the depositors who placed it there, according to a January 4 memorandum opinion from Judge Martin Glenn of the U.S. Bankruptcy Court in the Southern District of New York.

    Filed under:
    USA, Banking, Insolvency & Restructuring, IT & Data Protection, Litigation, Bracewell LLP, Bankruptcy, Cryptocurrency, United States bankruptcy court
    Authors:
    Robert Grattan , Mark E. Dendinger
    Location:
    USA
    Firm:
    Bracewell LLP
    Second Circuit Determines Agent’s Mistaken Payment of Principal to Lenders Does Not Invoke “Discharge-For-Value” Exception to Restitution
    2022-12-21

    On September 8, 2022, a three-judge panel in the United States Court of Appeals for the Second Circuit (the “Second Circuit”) reversed the United States District Court for the Southern District of New York (the “District Court”) when it determined that lenders of a syndicated loan facility to Revlon, Inc.

    Filed under:
    USA, New York, Banking, Insolvency & Restructuring, Litigation, Vinson & Elkins LLP, Second Circuit, United States bankruptcy court, US District Court for the Southern District of New York
    Authors:
    William L. Wallander , David S. Meyer , Steven M. Abramowitz , Bradley Foxman , Kristie Torkildsen Duchesne
    Location:
    USA
    Firm:
    Vinson & Elkins LLP
    Judge drain tackles private equity and fraudulent transfers in ‘tops’ decision
    2022-12-16

    On October 12, the Honorable Robert D. Drain, U.S. Bankruptcy Judge for the Southern District of New York, issued his final decision from the bench in the bankruptcy cases of supermarket chain Tops Holdings II Corporation (“Tops”). The decision came in an adversary proceeding seeking to avoid four dividend payments totaling $375 million from 2009–2013 paid to the Tops’ private equity investors (the “PE Group”) as constructive and actual fraudulent transfers and also hold the director-defendants responsible for breaching their fiduciary duties.

    Filed under:
    USA, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, White Collar Crime, A&O Shearman, Private equity, Clawback/avoidance/preferences/fraudulent transfers, Internal Revenue Service (USA), United States bankruptcy court
    Authors:
    Jordan Wishnew , Allison Selick
    Location:
    USA
    Firm:
    A&O Shearman
    A Line in the Sand: Caymans Proceeding Ineligible for Chapter 15
    2022-12-09

    Chapter 15 of the Bankruptcy Code provides a mechanism for United States cooperation and coordination with insolvency proceedings abroad, often affording foreign debtors wide-ranging relief and expansive rights through the United States Bankruptcy Court system. Not all proceedings in foreign jurisdictions are eligible — in order to be so, a proceeding must constitute a “foreign proceeding” under the Bankruptcy Code.

    Filed under:
    Cayman Islands, USA, Company & Commercial, Compliance Management, Insolvency & Restructuring, Litigation, Crowell & Moring LLP, Corporate governance, Mediation, United States bankruptcy court
    Authors:
    Frederick (Rick) Hyman
    Location:
    Cayman Islands, USA
    Firm:
    Crowell & Moring LLP
    Fifth Circuit Rules on the "Solvent-Debtor Exception" and Make-Whole Premiums
    2022-12-06

    On October 14, 2022, the U.S. Court of Appeals for the Fifth Circuit issued a long-awaited ruling on whether Ultra Petroleum Corp.

    Filed under:
    USA, Company & Commercial, Insolvency & Restructuring, Litigation, Jones Day, US Congress, United States bankruptcy court, Fifth Circuit, U.S. Court of Appeals
    Authors:
    Bruce Bennett , James O. Johnston , Heather Lennox , Joshua M. Mester , C. Lee Wilson , Nicholas C.E. Walter
    Location:
    USA
    Firm:
    Jones Day

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