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    Ninth Circuit Gives Creditors’ Committee Members Limited Litigation Protection
    2016-12-13

    “Any ... suit [against creditors’ committee members for their official acts] must be brought in the bankruptcy court, or in another court only with the express permission of the bankruptcy court,” held the U.S. Court of Appeals for the Ninth Circuit on Nov. 28, 2016. In re Yellowstone Mountain Club LLC, 2016 U.S. App. LEXIS 21187, *9 (9th Cir. Nov. 28, 2016).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, United States bankruptcy court
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Fifth Circuit vacates dip financing order for lack of good faith
    2014-09-15

    The U.S. Court of Appeals for the Fifth Circuit, on Sept. 3, 2014, vacated bankruptcy court and district court Chapter 11 debtor-in-possession (“DIP”) financing orders due to: (1) the lender’s lack of good faith in relying on a third party’s shares of stock as collateral; and (2) the bankruptcy court’s lack of subject matter jurisdiction. In re TMT Procurement Corp., 2014 WL 4364894 (5th Cir. Sept. 3, 2014).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Debtor, Good faith, Subject-matter jurisdiction, United States bankruptcy court, Fifth Circuit
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Secured lender’s full credit bid barred later recovery from guarantors
    2013-03-06

    The U.S. Court of Appeals for the Fifth Circuit held on Feb. 28, 2013, that a secured lender’s full credit bid for a Chapter 11 debtor’s assets at a bankruptcy court sale barred any later recovery from the debtor’s guarantors. In re Spillman Development Group, Ltd., ___ F.3d ___, 2013WL 757648 (5th Cir. 2/28/13). A “credit bid” allows a creditor to “offset its [undisputed] claim against the purchase price,” a right explicitly granted by Bankruptcy Code (“Code”) § 363(k). 3 Collier, Bankruptcy, ¶ 363.06[10], at 363-59 (16th rev. ed. 2010).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Surety, Debtor, Tortious interference, Secured loan, United States bankruptcy court, Fifth Circuit
    Authors:
    Adam C. Harris , Lawrence V. Gelber , Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Second Circuit holds Bankruptcy Code safe harbor insulates sellers of Enron commercial paper from preference and fraudulent transfer liability
    2011-06-29

    The U.S. Court of Appeals, in a 2-1 decision on June 28, 2011, held that Bankruptcy Code § 546(e), which exempts a “Settlement Payment” from a bankruptcy trustee’s avoiding powers, insulated two sellers of Enron Corporation’s commercial paper from suit despite Enron’s early pre- bankruptcy redemption. Enron Creditors Recovery Corp. v. Alfa, S.A.B. de C.V., ___F.3d ___, 2011 WL 2536101 (2d Cir. June 28, 2011) (2-1).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Bankruptcy, Clearing (finance), Unsecured debt, Security (finance), Safe harbor (law), Debt, Maturity (finance), Commercial paper, Title 11 of the US Code, ING Group, Enron, Second Circuit, United States bankruptcy court
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Pennsylvania district court denies secured creditors’ right to credit bid in sale auction where debtors had proposed to provide them the “indubitable equivalent” of their claims under plan of reorganization
    2009-11-13

    On Nov. 10, 2009, a Pennsylvania district court held that secured creditors do not have an absolute right to credit bid1 their debt under the Bankruptcy Code (the “Code”) in an asset sale conducted pursuant to a “cramdown” plan of reorganization that proposes to provide the secured creditors with the “indubitable equivalent” of their claims. In re Philadelphia Newspapers, LLC, Civil Action 09-00178 at 57 (E.D. Pa. Nov. 10, 2009). This decision is on appeal to the Third Circuit Court of Appeals.

    Facts

    Filed under:
    USA, Pennsylvania, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Credit (finance), Debtor, Collateral (finance), Limited liability company, Debt, Fair market value, Secured creditor, Secured loan, Title 11 of the US Code, United States bankruptcy court, Third Circuit
    Authors:
    Michael L. Cook , Lawrence V. Gelber , Adam C. Harris , David M. Hillman , Brian D. Pfeiffer
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Fifth Circuit reverses equitable subordination of insiders’ secured loan
    2008-06-30

    The U.S. Court of Appeals for the Fifth Circuit reversed a bankruptcy court’s equitable subordination order on June 20, 2008. Wooley v. Faulkner (In re SI Restructuring, Inc.), ____ F.3d __, 2008 WL2469406 (5th Cir. 2008). According to the court, subordination of the insiders’ secured claims was “inappropriate” because the bankruptcy trustee had failed to show that the defendant insiders’ “loans to the debtor harmed either the debtor or the general creditors.” Id., at *1. The court also rejected the trustee’s “deepening insolvency” argument on the facts and as a matter of law.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Bankruptcy, Surety, Debtor, Unsecured debt, Collateral (finance), Fiduciary, Board of directors, Default (finance), Secured loan, United States bankruptcy court, Fifth Circuit, Trustee
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Bankruptcy Court Preliminary Injunction Held Not Appealable
    2020-03-03

    A bankruptcy court’s preliminary injunction was “not a final and immediately appealable order,” held the U.S. District Court for the District of Delaware on Dec. 10, 2019. In re Alcor Energy, LLC, 2019 WL 6716420, 4 (D. Del. Dec. 10, 2019). The court declined to “exercise [its] discretion” under 28 U.S.C. §158(a)(3) to hear the interlocutory appeal. Id., citing 16 Wright & Miller, Federal Practice and Procedure, §3926.1 (3d ed. 2017) (“There is no provision for appeal as of right from an injunction order of a bankruptcy judge to the district court.”).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Internal Revenue Service (USA), United States bankruptcy court, Third Circuit
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Split Ninth Circuit Requires Default Interest to Cure Default
    2016-12-02

    A Chapter 11 debtor “cannot nullify a preexisting obligation in a loan agreement to pay post-default interest solely by proposing a cure,” held a split panel of the U.S. Court of Appeals for the Ninth Circuit on Nov. 4, 2016. In re New Investments Inc., 2016 WL 6543520, *3 (9th Cir. Nov. 4, 2016) (2-1).

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Ninth Circuit, United States bankruptcy court
    Authors:
    Michael L. Cook , Lawrence V. Gelber
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Eleventh Circuit vacates bad-faith asset sale
    2014-09-04

    The U.S. Court of Appeals for the Eleventh Circuit, on Aug. 15, 2014, ordered a bankruptcy court to vacate a final asset sale order almost four years after its entry because of insider misconduct. In re Global Energies, LLC, 2014 WL 3974577 (11th Cir. Aug. 15, 2014).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White Collar Crime, Schulte Roth & Zabel LLP, United States bankruptcy court, Eleventh Circuit
    Authors:
    Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Seventh Circuit extends competition rule to insider in new-value reorganization plan
    2013-02-20

    The U.S. Court of Appeals for the Seventh Circuit, on Feb. 14, 2013, held that an insider of a Chapter 11 partnership debtor cannot avoid the “competition rule” in a new-value reorganization plan. The debtor’s equity owner arranged for his wife, also an “insider,” to contribute new value to obtain the equity of the reorganized debtor. In re Castleton Plaza, LP, — F.3d –––, 2013 WL 537269 at *1 (7th Cir., Feb. 14, 2013).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Debtor, Bank of America, United States bankruptcy court, Seventh Circuit
    Authors:
    Michael L. Cook , Lawrence V. Gelber , Karen S. Park
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP

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