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    Southern District of New York rules that non-impairment clauses do not apply in bankruptcy
    2007-10-04

    While many amendments to bond indentures can be made without consent from all bondholders, “non-impairment” clauses provide that the indenture may not be amended or restructured in any way that will affect or impair a bondholder’s right to receive principal and interest when due without unanimous consent.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Bond (finance), Bankruptcy, Debtor, Interest, Debt, Dissenting opinion, Default (finance), Stay of execution, Trustee, Second Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    The Dana NOL Trading Order: new protections for investors
    2007-10-04

    On August 9, 2006, Judge Burton R. Lifland of the United States Bankruptcy Court for the Southern District of New York entered a Final Order Establishing Procedures for Trading in Claims and Equity Securities of Dana Corporation (the “Dana NOL Trading Order”). The Dana NOL Trading Order is materially different from NOL trading orders that have been approved by other bankruptcy courts and, from the perspective of investors in claims and distressed securities, represents a material improvement.

    Treatment of NOLs in Business Reorganizations

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Debtor, Injunction, Security (finance), Taxable income, Economy, Market value, Distressed securities, Internal Revenue Code (USA), United States bankruptcy court
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Lessons from Iridium: southern district bankruptcy judge dismisses $3.7 billion preference and fraudulent conveyance claims against Motorola
    2007-10-04

    On the Friday before Labor Day, Judge James Peck of the United States Bankruptcy Court for the Southern District of New York shocked the distressed bond market by dismissing the preference and fraudulent transfer counts of Iridium LLC Creditors Committee’s $3.7 billion adversary proceeding against Motorola, Inc. Judge Peck found that the Committee had failed to prove that Iridium was insolvent at any time—even the day before bankruptcy. Iridium’s $1.6 billion in bonds dropped from the mid-20s to low single digits in days.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Bond (finance), Bankruptcy, Market capitalisation, Breach of contract, Fiduciary, Fair market value, Warranty, Cashflow, Motorola, United States bankruptcy court, Third Circuit
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    District Court holds that bankruptcy claims purchased in good faith are not subject to equitable subordination claims
    2007-10-01

    Organizations that acquire claims in bankruptcy should acquire such claims by a sale without knowledge of the debtors’ claims against the original holder or prior transferees, and obtain an indemnification from the transferor of such claims.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, McDermott Will & Emery, Bankruptcy, Shareholder, Debtor, Good faith, Common law, Distressed securities, Citibank, Enron, United States bankruptcy court
    Location:
    USA
    Firm:
    McDermott Will & Emery
    Post-Travelers decisions continue the debate regarding the allowability of unsecured creditors’ claims for post-petition attorneys’ fees
    2007-10-01

    Recently, in Travelers Casualty & Surety Co. of America v. Pacific Gas & Electric Co., the U.S. Supreme Court resolved a conflict among the circuit courts of appeal by overruling the Ninth Circuit’s Fobian rule, which dictated that attorneys’ fees are not recoverable in bankruptcy for litigating issues “peculiar to federal bankruptcy law.” In reaching its decision, the Supreme Court reasoned that the Fobian rule’s limitations on attorneys’ fees find no support in either section 502 of the Bankruptcy Code or elsewhere.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Costs in English law, Debtor, Unsecured debt, Unsecured creditor, Title 11 of the US Code, Supreme Court of the United States, Ninth Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Jones Day
    Enron redux: round two goes to claims purchasers/traders
    2007-10-01

    In previous editions of the Business Restructuring Review, we reported on a pair of highly controversial rulings handed down in late 2005 and early 2006 by the New York bankruptcy court overseeing the chapter 11 cases of embattled energy broker Enron Corporation and its affiliates. In the first, Bankruptcy Judge Arthur J. Gonzalez held that a claim is subject to equitable subordination under section 510(c) of the Bankruptcy Code even if it is assigned to a third-party transferee who was not involved in any misconduct committed by the original holder of the debt.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Shareholder, Security (finance), Fraud, Fiduciary, Common law, Asset forfeiture, Citibank, Enron, Title 11 of the US Code, United States bankruptcy court
    Location:
    USA
    Firm:
    Jones Day
    Reversal of Enron ruling on claims transfers - reevaluating the risks of equitable subordination
    2007-10-01

    In a decision in In re Enron Corp., et al., 2007 U.S. Dist. LEXIS 63129, No. 05-01025 (S.D.N.Y. August 27, 2007), the Honorable Shira Scheindlin, United States District Judge for the Southern District of New York, held that the sale of a claim that is subject to equitable subordination under section 510(c) or disallowance under section 502(d) of the Bankruptcy Code may insulate the claim from subordination and disallowance when asserted against the buyer of the claim. At first blush the decision may be, and has been, read by some to offer relief and clarity to distressed debt investors.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Fried Frank Harris Shriver & Jacobson LLP, Punitive damages, Good faith, Remand (court procedure), Distressed securities, Prima facie, Deutsche Bank, Citibank, Enron, Second Circuit, United States bankruptcy court, US District Court for the Southern District of New York
    Location:
    USA
    Firm:
    Fried Frank Harris Shriver & Jacobson LLP
    Q & A with Frost Brown Todd's Ronald Gold and Doug Lutz
    2007-10-09

    The hurdles for KERP programs have been raised too high, causing debtors to lose critical personnel to the detriment of post-petition operations, say Frost Brown Todd’s Ronald Gold and Doug Lutz in our series of chats with high-profile bankruptcy lawyers.

    Q. What’s the most challenging bankruptcy you’ve worked on, and why?

    Filed under:
    USA, Insolvency & Restructuring, Fried Frank Harris Shriver & Jacobson LLP, Bond market, Bankruptcy, Debtor, Trade union, Mortgage loan, Coal, Economy, Subsidiary, Secured loan, United States bankruptcy court
    Location:
    USA
    Firm:
    Fried Frank Harris Shriver & Jacobson LLP
    Sixth Circuit holds buyer of Chapter 11 debtor's contract liable Only for Expressly Assumed Obligations
    2007-10-09

    The buyer of a Chapter 11 debtor's coal supply contract was not liable for the seller's obligations to the sales agent who secured the contract for the debtor-seller, according to a recent decision by the U.S. Court of Appeals for the Sixth Circuit. Al Perry Enterprises, Inc. v. Appalachian Fuels, LLC, 2007 U.S. App. LEXIS 22808 (6th Cir. Sept. 27, 2007). As the court explained, the buyer could not be liable to the sales agent "absent an express assumption of the [debtor's prior] obligations." Id. at *17.

    Background

    Filed under:
    USA, Energy & Natural Resources, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Debtor, Coal, Liability (financial accounting), Debtor in possession, Commission (remuneration), United States bankruptcy court, Sixth Circuit
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    The Queen Mary sails out of bankruptcy court
    2007-11-09

    Investor group “Save the Queen” purchased the historic Queen Mary ship and surrounding land and development rights for $43 million from the previous operator, Queen’s Seaport Development, which filed for Chapter 11 bankruptcy in 2005.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Pillsbury Winthrop Shaw Pittman LLP, Bankruptcy, Trustee, United States bankruptcy court
    Location:
    USA
    Firm:
    Pillsbury Winthrop Shaw Pittman LLP

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