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    Madoff trustee targets European private banks with new lawsuits
    2012-06-29

    On June 6, 2012, the trustee liquidating Bernard L. Madoff Investment Securities Inc., Irving Picard, filed new lawsuits in the U.S. Bankruptcy Court in Manhattan against several European private banks. Included in the many new lawsuits he has filed are a complaint seeking $122.2 million against ABN Amro Fund Services Nominees Ltd.; a complaint seeking $108.1 million against Belgian private lender Banque Degroof SA; and two complaints filed against Swiss private banks EFG Bank SA and Lombard Odier Darier Hentsch & Cie, respectively seeking amounts of $354.9 million and $179.4 million.

    Filed under:
    USA, New York, Capital Markets, Insolvency & Restructuring, Litigation, Sedgwick LLP, United States bankruptcy court
    Authors:
    Jennifer Q. Broda , Matthew M. Ferguson , Jennifer Hamilton , Thomas R. Orofino , Eric C. Scheiner
    Location:
    USA
    Firm:
    Sedgwick LLP
    Texas bankruptcy court denies recognition to Mexican financial restructuring plan; decision to be appealed to the Fifth Circuit
    2012-06-20

    On June 13, 2012, the bankruptcy court for the Northern District of Texas in In re Vitro, S.A.B. de C.V. (“Vitro SAB”) declined to recognize and enforce an order issued by the Federal District Court for Civil and Labor Matters for the State of León, Mexico, which approved Vitro SAB’s reorganization plan in its Mexican insolvency proceeding (known as a concurso mercantil proceeding). Vitro S.A.B. v. ACP Master Fund, Ltd., et al. (In re Vitro S.A.B.), Case No. 11–33335 (HDH), 2012 WL 2138112 (Bankr. N.D. Tex. June 13, 2012).

    Filed under:
    USA, Texas, Insolvency & Restructuring, Litigation, Greenberg Traurig LLP, Debtor, Debt, Comity, United States bankruptcy court, Fifth Circuit
    Location:
    USA
    Firm:
    Greenberg Traurig LLP
    PBGC asks bankruptcy court to treat prior sale of interest in debtor as prohibited attempt to evade ERISA pension liability
    2012-06-22

    The Pension Benefit Guaranty Corporation (PBGC) filed an objection on June 14, 2012, in the Delaware bankruptcy court proceedings of RG Steel ("Debtor"), challenging a recent sale by RG Steel's parent entity ("Parent") of a 25-percent ownership stake in the Debtor. If the sale is respected, Parent would fall outside of the Debtor's "controlled group" under the Employee Retirement Income Security Act (ERISA), with the result that Parent may cease to have joint liability for the Debtor's unfunded pension obligations.

    Filed under:
    USA, Delaware, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Duane Morris LLP, Bankruptcy, Employee Retirement Income Security Act 1974 (USA), Debtor, Interest, Pension Benefit Guaranty Corporation, United States bankruptcy court
    Location:
    USA
    Firm:
    Duane Morris LLP
    The Supreme Court confirms that secured creditors have the right to credit bid in plan sales
    2012-06-22

    In the 2010 decision of In re Philadelphia Newspapers, 599 F.3d 298 (3d. Cir. 2010), the Third Circuit Court of Appeals concluded that a plan proponent could deny a secured creditor the right to credit bid on its collateral when the sale was made pursuant to a plan of reorganization. That holding was a surprise to many given that secured creditors were specifically authorized to credit bid in stand-alone sales under section 363 of the Bankruptcy Code. A year or so later, another circuit court, the Seventh Circuit Court of Appeals, came to the opposite conclusion.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Chadbourne & Parke LLP, Debtor, Federal Reporter, Secured creditor, Title 11 of the US Code, United States bankruptcy court, Third Circuit
    Authors:
    Douglas E. Deutsch
    Location:
    USA
    Firm:
    Chadbourne & Parke LLP
    Vitro: Chapter 15 and the limits of comity: Texas bankruptcy court refuses to enforce third-party release provisions in Mexican plan of reorganization
    2012-06-25

    On June 13, 2012, Judge Harlin D. Hale of the United States Bankruptcy Court for the Northern District of Texas refused to enforce provisions of a Mexican plan of reorganization that purported to extinguish guarantees by the debtor’s non-debtor subsidiaries.  In refusing to enforce the non-debtor release, Judge Hale held both that the release of non-debtor guarantors was contrary to United States public policy and that the release did not merit enforcement under the specific criteria of chapter 15 for granting relief to a foreign debtor.

    Filed under:
    USA, Texas, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Debtor, Injunction, Comity, United States bankruptcy court
    Authors:
    Casey Servais
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Eleventh Circuit upholds a bankruptcy court’s exclusive jurisdiction to enforce its own Chapter 11 discharge injunctions
    2012-06-13

    On May 30, 2012, the United States Court of Appeals for the Eleventh Circuit held that a bankruptcy court in one federal district lacks jurisdiction to determine whether a debt was discharged under a chapter 11 plan confirmation order issued by a bankruptcy court in another federal district.  Alderwoods Group, Inc. v. Garcia, 1:10-cv-20509-KMM, 2012 U.S. App. LEXIS 10891 (11th Cir. May 30, 2012).  The decision makes it clear that a debtor must seek enforcement of its discharge order in the same federal court that granted the discharge in the first place.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Debtor, Injunction, Class action, Exclusive jurisdiction, Bankruptcy discharge, United States bankruptcy court, Eleventh Circuit
    Authors:
    Alicia B. Davis , Casey Servais
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    11th Circuit upholds fraudulent transfer claims against lenders in TOUSA
    2012-06-14

    In a recent decision, Senior Transeastern Lenders v. Official Comm. of Unsecured Creditors (In re TOUSA, Inc.), 2012 US App. LEXIS 9796 (11th Cir. May 15, 2012), the 11th Circuit Court of Appeals overturned a district court decision which had forcefully quashed a bankruptcy court decision to avoid, as a fraudulent transfer, a $400 million settlement and loan repayment by a parent company to a group of lenders (the “Transeastern lenders”).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White Collar Crime, Blank Rome LLP, Debtor, Standard of review, Due diligence, United States bankruptcy court
    Authors:
    Mathew S. Rotenberg
    Location:
    USA
    Firm:
    Blank Rome LLP
    Bankruptcy Court rules a foreign insolvency plan that extinguishes claims against non-debtor subsidiaries is manifestly contrary to US public policy
    2012-06-15

    In a decision further defining when US public policy restricts the relief a court may grant in aid of a foreign restructuring or insolvency proceeding, the Bankruptcy Court in the Chapter 15 case of Vitro, S.A.B. de C.V. v. ACP Master, Ltd. (In re Vitro, S.A.B. de C.V.), Ch. 15 Case No. 11-33335-HDH-15, 2012 WL 2138112 (Bankr. N.D. Tex. Jun. 13, 2012) refused to a enforce a Mexican restructuring plan that novated and extinguished the guaranty obligations of the Mexican debtor’s non-debtor subsidiary guarantors.

    Filed under:
    USA, Texas, Insolvency & Restructuring, Litigation, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Bankruptcy, Debtor, Injunction, Holding company, United States bankruptcy court
    Authors:
    Alan W Kornberg , Stephen J. Shimshak , Claudia R Tobler
    Location:
    USA
    Firm:
    Paul, Weiss, Rifkind, Wharton & Garrison LLP
    Ninth Circuit B.A.P. determines that third party guaranties can be considered in separately classifying lender claims
    2012-06-15

    In Loop 76, LLC, the Bankruptcy Appellate Panel for the Ninth Circuit (the “BAP”) recently held that a bankruptcy court may consider whether a creditor received a third party source of payment (e.g., a guaranty) when determining whether that creditor’s claim is “substantially similar” to other claims for purposes of plan classification under 11 U.S.C. § 1122(a). In re Loop 76, LLC, 465 B.R. 525 (B.A.P. 9th Cir. 2012).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Seyfarth Shaw LLP, Debtor, Collateral (finance), Ninth Circuit, United States bankruptcy court, Bankruptcy Appellate Panel
    Location:
    USA
    Firm:
    Seyfarth Shaw LLP
    Policy voided where insured concealed operation of Ponzi scheme and misrepresented financial status
    2012-06-19

    Applying Georgia law, the United States Bankruptcy Court for the Northern District of Georgia has voided a surplus lines policy on the grounds that the insured, a purported hedge fund management firm, concealed that it was operating a Ponzi scheme, submitted an inaccurate financial statement, and misrepresented that its investment funds were “stable.”Perkins v. Am. Int’l Specialty Lines Ins. Co., 2012 WL 2105908 (Bankr. N.D. Ga. Apr. 3, 2012).

    Filed under:
    USA, Georgia, Capital Markets, Insolvency & Restructuring, Insurance, Litigation, White Collar Crime, Wiley Rein LLP, Misrepresentation, Investment funds, United States bankruptcy court
    Location:
    USA
    Firm:
    Wiley Rein LLP

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