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    Second Circuit reverses bankruptcy court’s decision on PGBC termination premiums
    2009-04-16

    Companies that terminate pension plans before filing for bankruptcy may no longer escape paying significant claims to the PBGC.

    In Pension Benefit Guaranty Corporation v. Oneida, Ltd. dated April 8, 2009, the U.S. Court of Appeals for the Second Circuit reversed a ruling by the U.S. Bankruptcy Court for the Southern District of New York characterizing certain “termination premiums” owed to the Pension Benefit Guaranty Corporation (PBGC) pursuant to the Deficit Reduction Act of 2005 as contingent, pre-petition claims and thus dischargeable in bankruptcy.

    Filed under:
    USA, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, McDermott Will & Emery, Bankruptcy, Debtor, Retirement, Bankruptcy discharge, Pension Benefit Guaranty Corporation, Second Circuit, United States bankruptcy court
    Authors:
    Geoffrey T. Raicht
    Location:
    USA
    Firm:
    McDermott Will & Emery
    Second Circuit decision improves PBGC’s position in chapter 11
    2009-04-15

    On April 8, the Second Circuit Court of Appeals reversed the Bankruptcy Court and concluded that special ERISA “termination premiums” due PBGC are not contingent prepetition claims subject to discharge in a chapter 11 reorganization. Pension Benefit Guar. Corp. v. Oneida, Ltd., 2009 WL 929528 (2d Cir. April 8, 2009), rev’g Oneida Ltd. v. Pension Benefit Guar. Corp., 383 B.R. 29 (Bankr. S.D.N.Y., 2008).

    Filed under:
    USA, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Bankruptcy, Employee Retirement Income Security Act 1974 (USA), Debtor, Unsecured debt, Interest, Liquidation, Joint and several liability, Bankruptcy discharge, Pension Benefit Guaranty Corporation, Title 11 of the US Code, Pension Protection Act 2006 (USA), Second Circuit, United States bankruptcy court, US District Court for the Southern District of New York
    Authors:
    Alan W Kornberg , Jeffrey D. Saferstein , Lawrence I. Witdorchic , Robert C. Fleder
    Location:
    USA
    Firm:
    Paul, Weiss, Rifkind, Wharton & Garrison LLP
    Weathering the storm: great deals now available in bankruptcy court
    2009-04-15

    Whether you are interested in purchasing assets or a going concern, bankruptcy court can be a land of opportunity. Assets may be sold by a trustee, or someone the trustee retains, in a Chapter 7 liquidation, or by a Debtor-in-Possession (a “DIP”) in a Chapter 11 reorganization case. In either case, you should expect a competitive bidding process. Going concerns are typically sold in Chapter 11 cases where the debtor determines, often after trying to reorganize, that it lacks the resources to reorganize and continue operating.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Haynes and Boone LLP, Bankruptcy, Debtor, Interest, Title 11 of the US Code, Trustee, United States bankruptcy court
    Authors:
    Eric Terry , Kenric Kattner , Lenard Parkins , Sarah Foster , Stephen Pezanosky , Sue Murphy
    Location:
    USA
    Firm:
    Haynes and Boone LLP
    Bona fide purchasers protected from trustee action
    2009-04-27

    The U.S. Court of Appeals for the Ninth Circuit has held that a bankruptcy trustee could not avoid an unauthorized sale of real estate to a bona fide purchaser— although the proceeds of the sale did belong to the estate.

    The court ruled that an unauthorized postpetition transfer of real property in California could be avoided only if the buyer had actual knowledge of a bankruptcy filing, or if the trustee recorded the transfer of title to the property from the debtor to the estate in the land records of the applicable county, In re Tippett, 542 F.3d 684 (9th Cir. 2008).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Reed Smith LLP, Federal preemption, Bankruptcy, Debtor, Deed, Good faith, Conveyancing, Title 11 of the US Code, Trustee, Ninth Circuit, United States bankruptcy court, Bankruptcy Appellate Panel
    Authors:
    Jeanne S. Lofgren
    Location:
    USA
    Firm:
    Reed Smith LLP
    Fifth Circuit upholds bad faith sanctions
    2009-04-27

    Troubled economic times predictably result in an escalation in bankruptcy filings. As the economy began to worsen last year, the U.S. Court of Appeals for the Fifth Circuit issued a reminder that courts can—and will—penalize parties that tax an already busy bankruptcy court system with bad faith filings.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Reed Smith LLP, Bankruptcy, Debtor, Limited liability company, Consideration, Limited partnership, Due diligence, Bad faith, United States bankruptcy court, Fifth Circuit
    Authors:
    Jennifer P. Knox
    Location:
    USA
    Firm:
    Reed Smith LLP
    Are attorney’s fees recoverable in state actions for work done in bankruptcy court?
    2009-04-27

    Under the “American Rule” concerning the recovery of attorney’s fees in pursuing breach of contract litigation, the prevailing party is awarded fees if the contract or an applicable statute provides for such recovery. Some states also allow a judgment creditor to recover fees incurred in enforcing the judgment, if the judgment was based on a contract or statute that authorized fees in the original litigation. See, e.g., California Code of Civil Procedure § 685.040.

    Filed under:
    USA, California, Insolvency & Restructuring, Litigation, Reed Smith LLP, Bankruptcy, Costs in English law, Injunction, Breach of contract, False advertising, Unfair competition, United States bankruptcy court, California courts of appeal
    Authors:
    Mike C. Buckley
    Location:
    USA
    Firm:
    Reed Smith LLP
    Danger signs ahead - preparing to take action when automotive customers file bankruptcy
    2009-04-27

    As has been reported and rumored for many weeks, the bankruptcy filing for either GM or Chrysler, or both companies, is clearly one of the potential destinations on the road ahead. For certain parts suppliers who can take advantage of guarantees under the Auto Supplier Support Program recently announced by the U.S. Treasury Department, the news of a bankruptcy filing may feel somewhat less dire, except with respect to the likely disruption and fall off of future business.  

    Filed under:
    USA, Insolvency & Restructuring, Masuda Funai Eifert & Mitchell Ltd, Bankruptcy, Debtor, Supply chain, Subsidiary, US Department of the Treasury, General Motors, Chrysler, United States bankruptcy court
    Authors:
    Reinhold F. Krammer
    Location:
    USA
    Firm:
    Masuda Funai Eifert & Mitchell Ltd
    Third Circuit clarifies degree of control necessary to be an insider
    2009-04-27

    A recent opinion from the U.S. Court of Appeals for the Third Circuit confirms that “actual control” over a debtor is not necessary to qualify as a nonstatutory “insider” for the purpose of extending the period for preference recovery under Section 547 of the Bankruptcy Code. See Schubert v. Lucent Technologies, Inc. (In re Winstar Communications, Inc.), 554 F.3d 382 (3rd Cir. 2009).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Reed Smith LLP, Debtor, Breach of contract, Federal Reporter, Debt, Coercion, US Code, Trustee, United States bankruptcy court, Third Circuit
    Authors:
    Ann E. Pille
    Location:
    USA
    Firm:
    Reed Smith LLP
    Fourth Circuit rules on safe harbor protections for commodity forward contracts
    2009-04-27

    The U.S. Court of Appeals for the Fourth Circuit recently issued a decision that has the potential to have a major impact on how contracts that provide for physical delivery of commodities are treated under U.S. bankruptcy law.  

    Filed under:
    USA, Derivatives, Insolvency & Restructuring, Litigation, Reed Smith LLP, Bankruptcy, Debtor, Fraud, Safe harbor (law), Swap (finance), Commodity, Foreclosure, Liquidation, Conveyancing, DuPont, Title 11 of the US Code, Trustee, United States bankruptcy court, Fourth Circuit
    Authors:
    Andrew P. Cross
    Location:
    USA
    Firm:
    Reed Smith LLP
    Is triangular set-off enforceable under U.S. laws?
    2009-04-27

    The U.S. Bankruptcy Court for the District of Delaware recently issued a decision addressing triangular set-off provisions, which potentially has very far-reaching implications for the enforceability of contractual set-off rights under U.S. law.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Reed Smith LLP, Bankruptcy, Debtor, Safe harbor (law), Swap (finance), Debt, Common law, Chevron Corporation, US Code, Title 11 of the US Code, Delaware Supreme Court, United States bankruptcy court, US District Court for District of Delaware
    Location:
    USA
    Firm:
    Reed Smith LLP

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