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    Avoiding Foreign Transfers Based on Foreign Law Claims: Norske Case Favors Flexible Approach to Safe Harbor Analysis in Chapter 15
    2022-05-03

    In a 2021 chapter 15 decision, In re Bankruptcy Estate of Norske Skogindustrier ASA,1 the United States Bankruptcy Court for the Southern District of New York held that foreign law avoidance claims that are sufficiently analogous to claims under section 548(a)(1)(A)2 of the Bankruptcy Code—but not identical—may fall within the intentional fraud exception to the safe harbor provisions of section 546(e)3 of the Bankruptcy Code (the “Safe Harbor”).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, United States bankruptcy court
    Authors:
    Andriana Georgallas
    Location:
    USA
    Firm:
    Weil Gotshal & Manges LLP
    Allowing Attorney Fee Applications, Or Not, in Bankruptcy (In re H.T.O. & In re Sylvester)
    2022-04-14

    Question: What gets an attorney’s fee application allowed—or rejected—in bankruptcy?

    Short answer: The services, (i) must be “necessary,” and (ii) must require legal expertise.

    Two Recent Opinions

    Two recent opinions address this question:

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Koley Jessen PC, United States bankruptcy court
    Authors:
    Donald L. Swanson
    Location:
    USA
    Firm:
    Koley Jessen PC
    Subchapter V Plan: Why Extend The Deadline And Slow The Case?!
    2022-04-07

    “Subchapter V is supposed to be a fast process toward plan confirmation, but I don’t see that happening!”

    –Comment of a Bankruptcy Judge (as I recall the comment)

    It’s true: (i) Subchapter V is supposed to go quickly, but (ii) it often doesn’t.

    Here’s why it doesn’t: debtor attorneys often fail to push their cases forward.

    Illustration

    A bankruptcy court opinion, in a Subchapter V case, illustrates the problem.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Koley Jessen PC, United States bankruptcy court
    Authors:
    Donald L. Swanson
    Location:
    USA
    Firm:
    Koley Jessen PC
    "A Clash of Two Congressionally Constructed Titans": Fifth Circuit Declares Bankruptcy Court Victorious Over FERC in In re Ultra Petroleum Corporation
    2022-03-17

    On March 14, 2022, the United States Court of Appeals for the Fifth Circuit (the “Fifth Circuit”) revisited the issue of the rejection of filed-rate contracts in bankruptcy where such contracts are governed by the Federal Energy Regulatory Commission (“FERC”). The ruling marks the first time the Fifth Circuit has addressed this issue since its 2004 decision in In re Mirant Corp.1 In Federal Energy Regulatory Commission v.

    Filed under:
    USA, Energy & Natural Resources, Insolvency & Restructuring, Litigation, Bracewell LLP, FERC, United States bankruptcy court
    Authors:
    Mark K. Lewis , Mark E. Dendinger , Jonathan Lozano , Robert Grattan
    Location:
    USA
    Firm:
    Bracewell LLP
    The bankruptcy court’s ruling is in: j&j’s Texas two-step does not constitute a bad faith filing
    2022-03-02

    Last week this author delved into what has become known as the “Texas Two-Step,” the arguments for and against its permissibility and the broader implications for the bankruptcy system.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Squire Patton Boggs, United States bankruptcy court
    Authors:
    Norman N. Kinel
    Location:
    USA
    Firm:
    Squire Patton Boggs
    Opinion of Interest - In re Wolfson: A Potential Re-Evaluation of the “Undue Hardship” Test for Student Loan Borrowers
    2022-03-02

    In its January 14, 2022 decision in In re Wolfson, the United States Bankruptcy Court for the District of Delaware discharged Chapter 7 debtor Ryan K.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Mayer Brown, United States bankruptcy court
    Authors:
    Aaron Gavant , Sean T. Scott
    Location:
    USA
    Firm:
    Mayer Brown
    No Procedural Notice, No Problem: 11th Circuit Affirms Due Process Not Violated Where Debtor Provides Actual Notice
    2022-03-02

    Overview

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, United States bankruptcy court, Eleventh Circuit
    Authors:
    Matthew Goren , Lauren Tauro
    Location:
    USA
    Firm:
    Weil Gotshal & Manges LLP
    Foreign Debtors and Chapter 11 - Seeking Relief from Turbulent Skies
    2022-02-15

    Foreign companies seeking to protect their overseas assets from their creditors have often turned to the United States for immediate relief under Chapter 11 of the Bankruptcy Code. Establishing jurisdiction in the US for purposes of a bankruptcy filing has proved easy – the establishment of a nominal professional fees retainer with a local law firm on the eve of a bankruptcy filing will suffice.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Crowell & Moring LLP, United States bankruptcy court
    Authors:
    Frederick (Rick) Hyman , Paul Muscutt , Cathryn Williams
    Location:
    USA
    Firm:
    Crowell & Moring LLP
    Caselaw Update on Third Party Releases in Bankruptcy Plans
    2022-02-09

    In the Summer 2021 edition of the Restructuring Report, I wrote about legislative efforts to reform the Bankruptcy Code to place limits on the use of third party releases in bankruptcy plans of reorganization.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Fredrikson & Byron PA, US Congress, United States bankruptcy court, Fourth Circuit, US District Court for the Southern District of New York
    Authors:
    Clinton E. Cutler
    Location:
    USA
    Firm:
    Fredrikson & Byron PA
    Dust Off Your Magic Eight Ball - The Future of Nonconsensual Third-Party Releases in Light Of In Re: Purdue Pharma LP
    2022-02-09

    Court watchers have kept a close eye on the In re: Purdue Pharma LP chapter 11 bankruptcy case, and for good reason. It is one of the largest cases to test a question that has divided the Circuit Courts of Appeals: can a debtor in its chapter 11 plan include releases from liability for non-debtor third parties over the objection of creditors? Although the debate over the answer has been stewing for some time now, a December 2021 decision from the Southern District of New York may finally cause the pot to boil over.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Fredrikson & Byron PA, Bankruptcy, Second Circuit, United States bankruptcy court
    Authors:
    Emily M. McAdam
    Location:
    USA
    Firm:
    Fredrikson & Byron PA

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