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    Bankruptcy Court grudgingly permits financial advisor’s tail fee provision
    2010-02-19

    The U.S. Bankruptcy Court for the Southern District of Texas issued a stern warning to professional services providers regarding “tail fees,” establishing a presumption of unreasonableness against contract terms requiring fees not attached to tangible, identifiable and material benefits to the debtor’s estate.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Katten Muchin Rosenman LLP, Contractual term, Debtor, Investment banking, Investment company, Westlaw, United States bankruptcy court, US District Court for Southern District of Texas
    Location:
    USA
    Firm:
    Katten Muchin Rosenman LLP
    Now that’s settled – Second Circuit in Enron exempts redemption of commercial paper
    2011-07-11

    The Bottom Line:

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Bankruptcy, Debtor, Security (finance), Statutory interpretation, Safe harbor (law), Debt, Maturity (finance), Fair market value, Commercial paper, ING Group, Westlaw, Enron, US Code, Trustee, Second Circuit, United States bankruptcy court
    Authors:
    Benjamin C. Wolf
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Landlord who obtains prepetition warrant of eviction may be barred from recovering post-petition rent as administrative expense
    2011-07-15

    A recent decision by the U.S. District Court for the
    Southern District of New York concluded that a landlord
    who obtains a judgment of possession and warrant of
    eviction prepetition, yet is stayed from executing on the
    warrant due to the debtor’s bankruptcy filing, may not be
    entitled to post-petition rent as an administrative expense.
    In In re Association of Graphic Communications, Inc., No. 07-
    10278 (Bankr. S.D.N.Y. July 13, 2010), the court decided
    that, under New York law, the prepetition warrant of

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Real Estate, Faegre Drinker Biddle & Reath LLP, Bankruptcy, Debtor, Landlord, Leasehold estate, Capital punishment, Warrant (finance), Westlaw, United States bankruptcy court, US District Court for the Southern District of New York
    Authors:
    Brian Morgan
    Location:
    USA
    Firm:
    Faegre Drinker Biddle & Reath LLP
    Cayman hedge funds liquidators' request for Chapter 15 protection denied by Bankruptcy Court
    2007-09-19

    Funds' assets in the U.S. has been denied by the United States Bankruptcy Court for the Southern District of New York. See 2007 Bankr. LEXIS 2949, *26 (Bankr. S.D.N.Y. Aug. 30 , 2007). The Funds were being liquidated in the Cayman Islands, but the bankruptcy court held that they were not eligible for Chapter 15 relief under the U.S. Bankruptcy Code (the "Code") because the liquidations were not pending in a country where the Funds had their "center of main interests" or an "establishment" for the conduct of business.

    Filed under:
    Cayman Islands, USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Debtor, Injunction, Market liquidity, Swap (finance), Hedge funds, Liquidation, Broker-dealer, Liquidator (law), US Code, Westlaw, United States bankruptcy court, US District Court for SDNY
    Location:
    Cayman Islands, USA
    Firm:
    Schulte Roth & Zabel LLP
    Delaware bankruptcy court’s Pillowtex decision favors preference defendant relying on subsequent new value defense
    2009-10-20

    The October 15, 2009 decision of the US Bankruptcy Court for the District of Delaware in In re Pillowtex opens the door for creditors in the Third Circuit to increase their "new value" preference defense under the "subsequent advance" approach.In re Pillowtex, No. 03-12339 (Bankr. D. Del. filed Oct. 15, 2009).

    A trustee’s power to avoid preference payments is circumscribed by the statutory defenses set forth in section 547(c) of the Bankruptcy Code. The "subsequent new value" defense set forth in section 547(c)(4) has three well-established elements:

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Bankruptcy, Credit (finance), Debtor, Unsecured debt, Federal Reporter, Westlaw, Third Circuit, US District Court for District of Delaware
    Location:
    USA
    Firm:
    Squire Patton Boggs
    In brief: district court affirms Lehman Brothers safe-harbor setoff ruling
    2011-04-01

    In the July/August 2010 edition of the Business Restructuring Review, we reported on an important ruling handed down by bankruptcy judge James M. Peck in the Lehman Brothers chapter 11 cases addressing the interaction between the Bankruptcy Code’s general setoff rules (set forth in section 553) and the Code’s safe harbors for financial contracts (found principally in sections 555, 556, and 559 through 562). In In re Lehman Bros. Holdings, Inc., 433 B.R. 101 (Bankr. S.D.N.Y.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Debtor, Swap (finance), Concession (contract), Title 11 of the US Code, Lehman Brothers, Westlaw, US District Court for SDNY
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    From the top: recent U.S. Supreme Court ruling
    2011-04-01

    The U.S. Supreme Court’s October 2010 Term (which extends from October 2010 to October 2011, although the Court hears argument only until June or July) officially got underway on October 4, three days after Elena Kagan was formally sworn in as the Court’s 112th Justice and one of three female Justices sitting on the Court.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Costs in English law, Debtor, Federal Reporter, Ex post facto law, Debt, Tax deduction, Dissenting opinion, Majority opinion, Article III US Constitution, Internal Revenue Service (USA), US Congress, Westlaw, SCOTUS, Ninth Circuit
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Picard cannot make it so: Madoff trustee’s recoveries curtailed again
    2011-11-08

    In a client advisory sent by our office a few months ago, we described a decision in the Madoff saga in which the District Court for the Southern District of New York (the Court) closed off a potential avenue of significant recovery for the Madoff Trustee (the Trustee) and the Ponzi scheme victims by denying the Trustee standing to pursue certain claims against feeder funds – firms that sent investors’ funds to Madof

    Filed under:
    USA, New York, Capital Markets, Insolvency & Restructuring, Litigation, White Collar Crime, Mintz, Bankruptcy, Security (finance), Fraud, Safe harbor (law), Standing (law), Good faith, Due diligence, Bad faith, Common law, Title 11 of the US Code, JPMorgan Chase, UBS, Westlaw, US District Court for SDNY, Trustee
    Location:
    USA
    Firm:
    Mintz
    Actions based on same course of conduct are related claims; application of I v. I exclusion unclear where claims brought by trustee on behalf of debtor and subsidiaries
    2011-09-19

    The United States Bankruptcy Court for the District of Delaware, applying federal law, has held that certain lawsuits brought by a bankruptcy trustee were related claims, even though they alleged unique causes of action, because they were based upon the same course of conduct.  The court also found that the trustee was pursuing claims both on behalf of the policyholder-debtor and its subsidiaries, and therefore the application of the insured versus insured exclusion was “unclear.”  Nonetheless, the court found that the individual insureds were entitled to 100% of their defense cos

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Wiley Rein LLP, Bankruptcy, Costs in English law, Debtor, Board of directors, Liquidation, Subsidiary, Causality, Racketeer Influenced and Corrupt Organizations Act 1970 (RICO) (USA), Westlaw, Delaware Supreme Court, United States bankruptcy court, US District Court for District of Delaware, Trustee
    Location:
    USA
    Firm:
    Wiley Rein LLP
    Asbestos bankruptcy channeling injunction cannot reach direct actions based on independent duty of insurer, Second Circuit rules
    2008-02-22

    The United States Court of Appeals for the Second Circuit has ruled that the Johns-Manville bankruptcy court did not have jurisdiction to enjoin direct action claims asserted against Travelers entities that are predicted on an independent duty owed by Travelers, that do not claim against the res of the Manville estate, and that seek damages unrelated to and in excess of Manville's insurance proceeds. Johns-Manville Corp. v. Chubb Indemnity Ins. Co., --- F.3d ---, 2008 WL 399010 (2d Cir. Feb. 15, 2008).

    Filed under:
    USA, Insolvency & Restructuring, Insurance, Litigation, Wiley Rein LLP, Bankruptcy, Injunction, Federal Reporter, Mediation, Bad faith, Common law, Direct action, Westlaw, Second Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Wiley Rein LLP

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