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    Losing Your Marbles: A Sensible Interpretation of Section 316 of the Trust Indenture Act
    2017-01-27

    The U.S. Court of Appeals for the Second Circuit issued its ruling in Marblegate Asset Management, LLC v. Education Management Corp. that provided much needed clarity to creditors and issuers involved in out-of-court restructurings affecting noteholders. The issue for the court was whether Education Management Corp. (“EDMC”) violated the Trust Indenture Act (the “TIA”) when it implemented a restructuring that impaired the rights of one of its unsecured noteholders, Marblegate Asset Management, LLC (the “Noteholder”).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Unsecured debt, Asset management, Secured loan, Second Circuit
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Mandatory premium payments due on account of post-petition pension plan termination are pre-petition contingent claims
    2008-05-31

    Introduction

    In Oneida Ltd. v. Pension Benefit Guaranty Corp. (In re Oneida Ltd.),1 the United States Bankruptcy Court for the Southern District of New York addressed whether a premium payment created by the Deficit Reduction Act of 2005 (“DRA”)2 for pension plans terminated as part of a chapter 11 restructuring is a pre-petition claim or a post-petition administrative expense. The Court held that the statutorily mandated premium payment was a contingent pre-petition claim and was discharged upon confirmation of the debtor’s plan.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Employee Retirement Income Security Act 1974 (USA), Debtor, Unsecured debt, Retirement, Liquidation, Bankruptcy discharge, US Code, Title 11 of the US Code, Pension Benefit Guaranty Corporation, United States bankruptcy court
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    SDNY Bankruptcy Court rules that Borders gift card holders are not “known creditors” entitled to actual notice of a bankruptcy bar date
    2012-08-31

    Judge Martin Glenn of the Bankruptcy Court for the Southern District of New York recently ruled that Borders gift card holders did not qualify as “known creditors.” The Court concluded that the gift card holders were entitled only to publication notice rather than actual notice of the bar date for filing bankruptcy claims in Borders’ chapter 11 case.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Unsecured debt, United States bankruptcy court, US District Court for SDNY
    Authors:
    Casey Servais
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Creditor’s pre-petition release of debtor - guarantor voided by Bankruptcy Appellate Panel
    2008-03-27

    In In re SNTL Corp.,1 the United States Bankruptcy Appellate Panel of the Ninth Circuit recently decided that if a creditor is required in another proceeding to disgorge as a preference a payment that had been guaranteed by the debtor, the debtor’s liability as guarantor may be revived, provided that the agreement releasing the debtor from its guarantee obligation to the creditor explicitly permits such revival.

    Background

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Surety, Debtor, Unsecured debt, Ninth Circuit, United States bankruptcy court, Bankruptcy Appellate Panel
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Judge Gropper denies the appointment of an official committee of equity holders in Kodak’s Chapter 11 cases
    2012-07-16

    On June 28, 2012, Judge Allan Gropper of the United States Bankruptcy Court for the Southern District of New York declined to appoint an official committee of equity holders in Kodak’s chapter 11 cases.  The bankruptcy court determined that the appointment of an official committee was not warranted at that time, given that the costs to the bankruptcy estates would be substantial and equity’s interests were already represented by other constituencies seeking to maximize value and by a sophisticatedad hoc group of shareholders.  In re Eastman Kodak Company, Case No

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Shareholder, Debtor, Unsecured debt, United States bankruptcy court
    Authors:
    Audrey Aden Doline , Matthew J. Oliver
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Bondholders of insolvent Argentine company denied relief by US Bankruptcy Court
    2008-01-31

    In a recent decision, the United States Bankruptcy Court for the Southern District of New York (the “U.S. Court”) exercised its abstention powers and dismissed an involuntary chapter 11 petition filed against an Argentine company, Compania de Alimentos Fargo, SA (“Fargo”).1 Fargo, a debtor in an insolvency proceeding in Argentina, had moved to dismiss the involuntary petition principally because its Argentine bankruptcy case was still pending.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Unsecured debt, Interest, Comity, Subsidiary, Secured loan, Deutsche Bank, Citibank, United States bankruptcy court, Trustee
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Second Circuit clarifies rules on gifting, designation, in DBSD
    2011-06-24

    Earlier this year, the U.S. Court of Appeals for the Second Circuit held that a proposed “gifting” plan distributing value from the second lien lenders to the prepetition equity holder violated the absolute priority rule and was confirmed in error.2 This decision, by a 2-1 panel vote,3 reversed the decisions of the Bankruptcy and District Courts for the Southern District of New York. The Second Circuit also affirmed unanimously the designation of the vote of an indirect competitor of the debtor that held no claims prior to the petition date.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Shareholder, Debtor, Unsecured debt, Interest, Debt, Good faith, Voting, Sprint Corporation, Dish Network, Second Circuit, United States bankruptcy court
    Authors:
    Michael A. Stevens
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Dashed expectations yield no recovery in Solutia
    2008-01-31

    Creditors have recently made some headway in collecting the full amount to which they are contractually entitled pursuant to various debt instruments. In In re Calpine Corp.,1 reported in our summer 2007 newsletter, the Bankruptcy Court for the Southern District of New York permitted a secured creditor to collect damages (albeit in the form of an unsecured claim) caused by dashed expectations due to the early repayment of its debt.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Securitization & Structured Finance, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Unsecured debt, Interest, Debt, Maturity (finance), Refinancing, Secured creditor, United States bankruptcy court, Trustee
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Champion Enterprises bankruptcy court dismisses equitable subordination and fraudulent transfer claims
    2011-06-16

    The United States Bankruptcy Court for the District of Delaware recently dismissed equitable subordination and fraudulent transfer claims filed by the Official Committee of Unsecured Creditors of Champion Enterprises, Inc.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Credit (finance), Unsecured debt, Breach of contract, Consideration, Debt, Involuntary dismissal, Default (finance), Title 11 of the US Code, Credit Suisse, United States bankruptcy court, US District Court for District of Delaware
    Authors:
    Kathryn M. Borgeson , Joseph Zujkowski
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Pre-plan settlements that violate the absolute priority rule may face obstacles
    2007-09-21

    In Motorola, Inc. v. Official Committee of Unsecured Creditors (In re Iridium Operating LLC), 478 F.3d 452 (2d Cir. 2007), the Official Committee of Unsecured Creditors (the “Committee”) and the debtors’ lenders sought approval of a settlement prior to confirmation of a plan of reorganization. While the Court concluded that many aspects of the settlement might otherwise be approved, it found that a provision that distributed funds in violation of the absolute priority rule lacked sufficient justification.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Debtor, Unsecured debt, Collateral (finance), Breach of contract, Fraud, Fiduciary, Accounts receivable, Federal Reporter, Limited liability company, Remand (court procedure), Secured creditor, Unsecured creditor, Motorola, Second Circuit, United States bankruptcy court, First Circuit
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP

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