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    Delaware Bankruptcy Court decision in SemCrude prohibits triangular setoff in absence of safe harbor
    2009-03-31

    Earlier this year, the United States Bankruptcy Court for the District of Delaware ruled that a nondebtor cannot effect a “triangular” setoff of the amounts owed between it and three affiliated debtors, even if the parties had entered into pre-petition contracts that expressly contemplated multiparty setoff.1 In reaching its decision, the Court relied principally on the plain language of section 553(a) of the United States Bankruptcy Code, which limits setoff to “mutual” obligations — i.e., direct obligations between a single obligor and obligee.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Debtor, Safe harbor (law), Debt, Limited partnership, Precondition, Subsidiary, Title 11 of the US Code, Chevron Corporation, United States bankruptcy court, US District Court for District of Delaware
    Authors:
    Leslie W. Chervokas , Mark C. Ellenberg
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Court enforces pre-petition waiver of automatic stay
    2008-09-30

    In In re Bryan Road LLC,1 the United States Bankruptcy Court for the Southern District of Florida considered whether a waiver of the automatic stay provision included in a prepetition workout agreement is enforceable in the debtor’s subsequent bankruptcy. The Bankruptcy Court enforced the waiver and held the creditor was not bound by the automatic stay after engaging in a four-factor analysis of the agreement and the circumstances surrounding its execution. The Bankruptcy Court cautioned, however, that relief from stay provisions are neither per se enforceable nor self-executing.

    Filed under:
    USA, Florida, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Waiver, Interest, Consideration, Mortgage loan, Foreclosure, Bad faith, Refinancing, Default (finance), Capital punishment, United States bankruptcy court, US District Court for Southern District of Florida
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Secured lender’s entitlement to postpetition interest reduced from contract rate
    2008-03-27

    In the January 2008 issue, we reported on In re Solutia, Inc.,1 decided by the United States Bankruptcy Court for the Southern District of New York. The Solutia court demonstrated how contractual entitlements of debt instruments may be altered in bankruptcy. There, the original issue discount of certain secured notes was found to be interest, rather than principal, causing a significant portion of the noteholders’ claims to be disallowed. In In re Urban Communicators PCS, Ltd.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Interest, Debt, Limited partnership, Default (finance), Secured creditor, Subsidiary, Federal Communications Commission (USA), SCOTUS, United States bankruptcy court
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    SDNY denies payment of administrative expense claim by relying on the operative document as a whole and rejecting a statutory rule of construction
    2013-02-26

    On December 13, 2012, Judge Vincent L. Briccetti from the United States District Court of the Southern District of New York denied the appellant Notes Trustee’s request to compel payment of an administrative expense claim.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Statutory interpretation, Motion to compel, United States bankruptcy court, US District Court for SDNY
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Velo Holdings KEIP approved by SDNY Bankruptcy Court
    2012-07-24

    On June 6, 2012, Bankruptcy Judge Martin Glenn of the U.S. Bankruptcy Court for the Southern District of New York approved a $2.875 million key employee incentive plan (“KEIP”) in the Velo Holdings bankruptcy cases over the objection of the U.S. Trustee finding that it was primarily incentivizing and a sound exercise of the debtors’ business judgment.  Inre Velo Holdings Inc., Case No. 12-11384 (MG), 2012 Bankr. LEXIS 2535 (Bankr. S.D.N.Y. 2012).  The decision follows well-settled law in the Southern District and Delaware regarding approval of KEIPs.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Debtor, Business judgement rule, United States bankruptcy court, US District Court for SDNY
    Authors:
    Andrew M. Greenberg
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Bankruptcy Court for Southern District of New York prohibits triangular setoff provided for in safe harbored contract
    2011-10-12

    On October 4, 2011, the United States Bankruptcy Court for the Southern District of New York ruled that a contractual right of a triangular (non-mutual) setoff was unenforceable in bankruptcy, even though the contract was safe harbored. In re Lehman Brothers, Inc., No. 08-01420 (JMP), 2011 WL 4553015 (Bankr. S.D.N.Y. Oct. 4, 2011).

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Collateral (finance), Safe harbor (law), Swap (finance), Debt, Concession (contract), Standing (law), Liquidation, Common law, Title 11 of the US Code, UBS, Lehman Brothers, Delaware Supreme Court, United States bankruptcy court, US District Court for SDNY, Trustee
    Authors:
    Mark C. Ellenberg , Peter M. Friedman
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Delaware Bankruptcy Court denies appointment of examiner despite statutory mandate
    2010-08-13

    The United States Bankruptcy Court for the District of Delaware recently denied the appointment of an examiner in U.S. Bank National Association v. Wilmington Trust Co. (In re Spansion, Inc.),1 despite the requirement in section 1104(c) of the Bankruptcy Code that the Court "shall" appoint an examiner in certain circumstances. In making this decision, Chief Bankruptcy Judge Kevin J.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Interest, Discovery, Debt, US Code, United States bankruptcy court, US District Court for District of Delaware
    Authors:
    Matthew J. Oliver
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Spotlight on Sotomayor Second Circuit bankruptcy rulings
    2009-09-30

    On Thursday, August 6, 2009, the United States Senate confirmed Justice Sonia Sotomayor to the Supreme Court of the United States. As a former Judge on the Court of Appeals for the Second Circuit, Judge Sotomayor’s jurisprudence includes a number of decisions involving noteworthy bankruptcy cases. This article provides a brief survey of these decisions.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Shareholder, Debtor, Security (finance), Fraud, Admiralty law, In rem jurisdiction, Securities fraud, US Securities and Exchange Commission, US Senate, SCOTUS, Second Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Bankruptcy court modifies success fee payable to debtor’s financial advisor in pre-packaged bankruptcy
    2009-03-31

    Introduction

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Contractual term, Bankruptcy, Debtor, Interest, Contingent fee, Debtor in possession, Capital punishment, Leverage (finance), Title 11 of the US Code, United States bankruptcy court
    Authors:
    Joseph Zujkowski
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Lehman court orders outline rights of counterparties to safe harbored financial contracts
    2008-09-21

    September 21, 2008 Following a week of unprecedented market upheaval, players in financial contracts got some reassurance from the bankruptcy judge presiding over the liquidation of broker/dealer Lehman Brothers Inc. (“LBI”) and the sale of a portion of its assets to Barclays Capital Inc. (“BCI”).

    Filed under:
    USA, New York, Banking, Insolvency & Restructuring, Cadwalader Wickersham & Taft LLP, Collateral (finance), Security (finance), Swap (finance), Commodity, Foreclosure, Liquidation, Broker-dealer, Lehman Brothers, Securities Investor Protection Corporation, United States bankruptcy court
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP

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