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Restructuring

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Claims, Subordination & Recharacterization

Bad Children: How One Court Used Alter Ego Doctrine to Uphold Reverse Veil Piercing

Automatic Stay, Litigation Issues

Nondebtor Alter Egos Don’t Automatically Benefit from the Automatic Stay, Says New York’s Eastern District

Corporate Governance & Fiduciary Duties

All My Alter Egos Live in Texas . . .

Corporate Governance & Fiduciary Duties

In California (Unlike Delaware), No Need to Let Your Alter Ego Get in the Way of Suing a Debtor’s Sole Shareholder Directly

Avoidance Actions

Two Means Two: Delaware Bankruptcy Court Confirms that the Two-Year Look-Back Period for Fraudulent Transfers Is Non-Negotiable

Weak Sauce: Requirements for Prepetition Negotiations in Municipal Bankruptcies and the City of Vallejo Experience

Lookback Period

Lookback Period – Six Weeks, Pt. 2

Jurisdiction & Appeals, Stern Files

Well Well Wellness: The Supreme Court’s Most Recent Decision Regarding Stern v. Marshall and its Progeny

Claims, Jurisdiction & Appeals, Rules & Procedures

Can a Bankruptcy Court Order a Non-Debtor to Dismiss a State Court Lawsuit Against a Third Party? It Depends on the Nature of the Claim—and How Long the Non-Debtor Waits to Object

Corporate Governance & Fiduciary Duties

Plain Vanilla Veil Piercing Still Alive and Well in New York

Jurisdiction & Appeals, SIPA Proceedings

Second Circuit: SIPA Trustee’s Attempt to Bring Claims Against Financial Institutions Fails Because He Stands in the Shoes of Madoff and Not Madoff’s Customers

Contributor(s)

Andriana
Georgallas

Involuntary Petitions, Jurisdiction & Appeals

Why Pasta Cooking Techniques Should Not Be Used in Litigation

Chapter 11 Plans, Plan Solicitation & Voting

You Asked Your Buddy to Do What? Non-Statutory Insiders and Vote Designation

Corporate Governance & Fiduciary Duties, Jurisdiction & Appeals

The Creditor of My Affiliate Is…Not my Creditor

Claims, Jurisdiction & Appeals

Creditor Who Waited to File Late Proof of Claim Learns It Can’t Rush Through the Appeals Process: Delaware District Court Denies Leave for an Interlocutory Appeal

Jurisdiction & Appeals, Stern Files

The Stern Files (sixth edition)

Mass Torts, Releases & Exculpations

Are Third Party Releases "All in the Family"?

Corporate Governance & Fiduciary Duties

Legitimate Protection from Parental Abuse or Just Another Blame Game?

Liability Management

Tracking The Evolution of Liability Management Exercises

Contributor(s)

Vynessa
Nemunaitis

Financing, What We're Watching

Tighter Aircraft Market Demands Creative Restructuring Solutions

Contributor(s)

Portfolio Company, Corporate Governance & Fiduciary Duties, Professionals

Pledged Equity Proxy Rights and the Rise of the Board Flip

Contributor(s)

David
Griffiths

International, Jurisdiction & Appeals, Litigation Issues, Setoffs

A Foreign Entity May be Subject to U.S. Bankruptcy Court Jurisdiction Simply by Utilizing a U.S. Bank Account in a Transaction with Another Foreign Entity

Contributor(s)

Ronit J.
Berkovich

Furqaan
Siddiqui

Case Overviews, Corporate Governance & Fiduciary Duties, Litigation Issues, Post-Confirmation Issues, Sponsor/Owner Series, Valuation

ASHINC or Swim Case Study: Lessons for Private Equity Sponsors on Risks Relating to Distressed Portfolio Companies (Part II: Breach of Fiduciary Duty)

Contributor(s)

Ronit J.
Berkovich

Automatic Stay, Chapter 11 Plans, Jurisdiction & Appeals, Litigation Issues, Pre-Filing Considerations, Releases & Exculpations, Rules & Procedures, Third Party Claims, What We're Watching

Will We Have New Rules for Corporate Bankruptcies? Recently Proposed Legislation That Could Reform Chapter 11 Practice

Contributor(s)

Furqaan
Siddiqui

Administrative Expenses, Case Overviews, Claims, Energy Sector, Litigation Issues, News, Post-Confirmation Issues, What We're Watching

The Aftermath of a Complicated Breakup: Third Circuit Holds Stalking Horse Bidder in Terminated Transaction May Assert Potential Administrative Expense Claim Notwithstanding Disallowance of Its Termination Fee

Contributor(s)

Ronit J.
Berkovich

Corporate Governance & Fiduciary Duties, Litigation Issues, News, Post-Confirmation Issues, What We're Watching

Officers of Selling Companies May Escape Fiduciary Duty Liability But May Be Required to Return Change of Control Payments if Company is Insolvent Post-Closing (Nine West Part 2)

Contributor(s)

Ronit J.
Berkovich

Third Circuit Decision Provides New Guidance on the Unfair Discrimination Standard of Cramdown and the Enforcement of Subordination Agreements When Confirming Cramdown Plans

Contributor(s)

Ronit J.
Berkovich

An Asset Purchase That Wasn’t—Beware the De Facto Merger Doctrine in Distressed M&A

Contributor(s)

363 Sales, Case Overviews, Healthcare, What We're Watching

Bankruptcy Court Confirms High Burden to Find Material Adverse Effect in Asset Purchase Agreement

Contributor(s)

Ronit J.
Berkovich

Chapter 11 Plans, Claims, What We're Watching

To Make-Whole … or Not

Contributor(s)

Alfredo R.
Perez

News

Claire’s Stores, Inc.: A Proactive Approach to Portfolio Company Governance

Credit Bidding, Case Overviews, Distressed Debt Funds, Secured Claims, Valuation

Delaware Bankruptcy Court Declines to Bind Credit Bidders to the Mast

Contributor(s)

Jurisdiction & Appeals

Momentive Court Declines to Dismiss Creditors’ Appeals as Equitably Moot

Contributor(s)

David
Griffiths

Case Overviews, Chapter 11 Plans, Cramdown, Litigation Issues, Plan Solicitation & Voting

U.S. Bank N.A. v. Village at Lakeridge, LLC

Contributor(s)

Ronit J.
Berkovich

Fees, Professionals

Fees, Fees, Fees: SDNY Bankruptcy Court Questions the Ongoing Validity of the “Blackstone Protocol” for Investment Banker Fees in Chapter 11 Cases

No American Horror Drama TV Series, but Close: Chapter 11 Case Dismissed as Resembling “Walking Dead”

Contributor(s)

Andriana
Georgallas

Arbitration, Chapter 11 Plans, Intellectual Property, Litigation Issues, Post-Confirmation Issues

Barred by Res Judicata & Judicially Estopped – Court Finds That Netflix Has No Chill

Assumption & Rejection, Executory Contracts & Unexpired Leases

Dueling Debtors: Missouri Bankruptcy Court says Debtor Can Reject Contract That Counterparty (Who is Also a Debtor) Sought to Assume

Contributor(s)

Labor & Employment

Debtors Trump Union in 1113 Appeal (Trump the verb, not the Donald)

Chapter 11 Plans, Releases & Exculpations

Let Me Be Clear: Fifth Circuit Holds Generic Plan Release Language Lacks Specificity to Discharge Creditor’s Claims Against Officer of the Debtor

Contributor(s)

Contributor's Corner

For-Profit Education Institutions Face a Volatile and Uncertain Future

Distressed Debt Funds, Litigation Issues

Distressed Investor Finds Covenant-Lite Loan Offers Little Protection – Quadrant Structured Products v. Vertin

Avoidance Actions

Making a Clean Break, Part II: Tenth Circuit Sheds Light on Reasonably Equivalent Value for Severance

Jurisdiction & Appeals, Litigation Issues, Stern Files

Be Careful — You Might Consent to Adjudication in Bankruptcy Court Even If You’ve Expressly Said You Don’t

ABI Reform Commission, Chapter 11 Plans, Financial Markets

LSTA to ABI Commission on Chapter 11 Reform: No Way, José

Contributor(s)

David
Griffiths

Financing, Litigation Issues

Judge Scheindlin Rules in Caesars that Trust Indenture Act Bars “Core” Impairments; Certifies the Issue to the Second Circuit OR What’s the Deal with the Caesars Parent Guarantee Litigation? [PART II]

Chapter 11 Plans, Chapter 11 Trustees & Examiners, Chapter 15, Executory Contracts & Unexpired Leases, International, Lookback Period, Secured Claims

Lookback Period: Eight Weeks (Part 3)

363 Sales, ABI Reform Commission, Cryptocurrency Issues, Chapter 11 Trustees & Examiners, Chapter 7 Trustees, Cramdown, Lookback Period, Secured Claims, Valuation

Lookback Period: Eight Weeks

What Marblegate Can Teach Us About the Protections Available to Minority Noteholders in an Out-of-Court Restructuring

Contributor(s)

Executory Contracts & Unexpired Leases

It’s All or Nothing: Delaware District Court Says Debtor Cannot Pick and Choose From Bundle of Related Agreements!

Onward, Christian Soldiers: Some Guidance on 363 Sales, Fair Auctions, and Proposed Sales to Insiders

Cryptocurrency Issues

Banks and Bitcoin Exchanges

Executory Contracts & Unexpired Leases, Real Estate

Delaware Bankruptcy Court Holds That Vacating Premises After Rejection of a Lease Does Not Constitute Termination of the Lease

Claims, Rules & Procedures

Can You Object to a Claim Just Because It Doesn't Include Supporting Documentation? The Answer May Not Be as Simple as You Think

Jurisdiction & Appeals, Stern Files

BREAKING NEWS: Some Guidance from SCOTUS on Stern v. Marshall! (And What You Really Need to Know)

Chapter 11 Plans, Jurisdiction & Appeals

The Supreme Court Rigidly Applies the Rules of “Flexible Finality” in Bullard v. Blue Hills Bank

Breaking the Code

Distributions – Section 1143

News

Remembering Harvey R. Miller: Chapter 11 in Transition – From Boom to Bust and Into the Future

Post-Confirmation Issues

Tipping Point: Plan Clarification or Plan Modification? Third Circuit Denies Bankruptcy Court’s Use of Its Plan Clarification Powers to Circumvent Plan Modification Requirements of Section 1127

ABI Reform Commission

Making an Exit, Part II: ABI Commission Recommendations on Chapter 11 Plan Content, Voting and Exit Orders

ABI Reform Commission

Making an Exit, Part I: ABI Commission Recommendations on Chapter 11 Plan Content, Voting and Exit Orders

ABI Reform Commission

ABI Chapter 11 Reform Commission Series: Postpetition Financing II

Contributor(s)

Gabriel A.
Morgan

Litigation Issues

Delaware Bankruptcy Court Provides Further Guidance on the Contours of the Common Interest Doctrine

Contributor(s)

ABI Reform Commission

ABI Chapter 11 Reform Commission Series: Small and Medium Sized Debtor Enterprises

Contributor(s)

Litigation Issues

Chesapeake Bond Redemption Case: Ambiguity, Plain Meaning and Value

Corporate Governance & Fiduciary Duties

Slouching Towards Bankruptcy: Corporate Fiduciaries Escape Liability in Ultimate Escapes

Contributor(s)

Gabriel A.
Morgan

Executory Contracts & Unexpired Leases

If it Looks Like a Duck and Quacks Like a Duck, Then…: Kansas Bankruptcy Court Finds Car “Lease” is a Disguised Financing Based on Economic Realities of Transaction

Avoidance Actions, Financing, Subordination & Recharacterization

There’s a Thin Line Between Equity and Debt: Affiliates, Advances and Avoiding Recharacterization

Rules & Procedures

House Passes Financial Institution Bankruptcy Act of 2014 and Takes Significant Step Towards Establishing a Separate Bankruptcy Process for Bank Holding Companies and Large Financial Institutions

Labor & Employment

When the Stakes are High, Union Can’t Gamble with Gambling Debtors – Bankruptcy Court Approves Casino’s Rejection of CBA

Anti-Assignment Clauses, Distressed Debt Funds, Financial Markets, What We're Watching

Interview with Bridget Marsh, Deputy General Counsel of the LSTA on Meridian Sunrise Village

Contributor(s)

David
Griffiths

North of the Border Update

Walking a Mile in the Trustee’s Shoes: How s. 38 of the BIA can allow creditors to revive dismissed claims

Chapter 11 Plans, Cramdown, Secured Claims

Momentous Decision in Momentive Performance Materials: Cramdown of Secured Creditors – Part II

Contributor(s)

David
Griffiths

Chapter 11 Plans, Cramdown, Secured Claims

Momentous Decision in Momentive Performance Materials: Cramdown of Secured Creditors – Part I

Contributor(s)

David
Griffiths

Are You Not Entertained? The SDNY Weighs In On the Battle Between Sections 363(f) and 365(h) of the Bankruptcy Code

Chapter 11 Plans, Cramdown, Real Estate

Recent Bankruptcy Court Decision Renews Debate over Artificial Impairment

Contributor(s)

Corporate Governance & Fiduciary Duties

The Rural/Metro Decision and its Relevance to Reorganization

Avoidance Actions, Financing

“Release the Kraken” II: For Want of a Lien, the Botticelli Could Be Lost. . .

Administrative Expenses, DIP Financing

Breaking-Up Just Got Harder to Do: Court Holds Break-Up Fee to be Prepetition Claim Not Entitled to Administrative Expense Priority

Contributor(s)

North of the Border Update

Approval of a SISP in a BIA proposal: Re Colossus Minerals Inc.

Survey

THE 2014 CHAMPION OF WEIL’S MARCH MADNESS IS…

363 Sales, Jurisdiction & Appeals

Shoulda Coulda Woulda: Would-Be Bidders Lack Standing to Challenge the Result of an Auction in Bankruptcy

Are Utilities Unfairly Protected Under the Bankruptcy Code?

Claims, Rules & Procedures

Scheduled Creditors Beware! One Court Surprisingly Says You Are Ineligible to Vote on a Chapter 11 Plan If You Fail to File a Proof of Claim

Jurisdiction & Appeals

Forget Partying Like It’s 1999; the Ninth Circuit Wants to Adjudicate Like It’s 1998

Chapter 9, Insurance

Now You See Them, Now You Don’t . . . Now Pay – One Court Weighs in on Insurer’s Continued Liability on Bonds Restructured Under a Chapter 9 Plan of Adjustment

Jurisdiction & Appeals, Stern Files

Stern Files: Seventh Circuit Sides with Sixth Circuit in Holding that Consent Does Not Cure Bankruptcy Courts’ Lack of Final Constitutional Authority

Sharia Compliant DIP Financing: Coming Soon, to a Bankruptcy Court near You

Contributor(s)

David
Griffiths

Assumption & Rejection, Executory Contracts & Unexpired Leases

Coverage of the June 4, 2013 Chapter 11 Reform Commission Hearing: Part 1 of 2

Chapter 11 Plans, Pre-Filing Considerations, Real Estate, Secured Claims

The Battle for Camp Bowie: A Fifth-Circuit Story of Artificial Impairment, Cramdown, and the Risks of Secured Creditors

Cramdown, Jurisdiction & Appeals

Jumpin’ Donuts: Bankruptcy Settlements and the Gifting and Equitable Mootness Doctrines

Jurisdiction & Appeals, Stern Files

The Stern Files (Seventh Edition)

North of the Border Update

Critical Supplier Charges in the CCAA

Eighth Circuit Holds Automatic Stay Inapplicable to Action Challenging Transfer of Collateral to Real Estate Improvement District

North of the Border Update

Québec Court: DIP Lender Has Priority over Pension Plan Deficit

North of the Border Update

Changing Horses in Mid Stream: Avoiding a Forced Liquidation by Converting from BIA Proposal Proceedings to CCAA Proceedings

North of the Border Update

To Restructure or Liquidate? – That is the Question: Dueling CCAA and Receivership Applications

Dead or Alive – Liquidation or Restructuring under the Hungarian Insolvency Law?Part 3 — Out-of-Court Workouts

Bankruptcy-Related Expenses: Are They Deductible?

Chapter 11 Plans, Chapter 9

All aboard! – Owner of Las Vegas Monorail Fails to Ride Out of Bankruptcy

North of the Border Update

Going, Going, Gone!: First Asset Sale Without a Proposal Approved under BIA Proposal Provisions

Reaffirmation Agreements – Not Just for Individual Chapter 7 Debtors

North of the Border Update

Risky Business: Terminating Contracts Under the Master ISDA Contract

Case Overviews, Chapter 9, Labor & Employment

A Distressed Municipality with a Plan: The City of Vallejo’s Plan of Adjustment

Southern District of New York Says Environmental Injunctions are Not Claims Subject to Discharge in Bankruptcy

Jurisdiction & Appeals, Stern Files

The Stern Files (second edition)

Dodd-Frank & Financial Institution Regulation

Resolution Plan Redux: Rule Requiring Insured Depository Institutions to Submit Resolution Plans Under the FDIA Closely Parallels Rule Requiring Bank Holding Companies to Submit Resolution Plans under the Dodd-Frank Act

Dodd-Frank & Financial Institution Regulation

FDIC Approves Final Rule Regarding Submission of Resolution Plans: Significant Changes Made in Response to Comments

Avoidance Actions, Energy Sector, Financing

Be Careful What You Draft for: Delaware Chancery Court Blesses Dynegy’s Reorganization

Contributor(s)

Gabriel A.
Morgan

Dodd-Frank & Financial Institution Regulation

FSB Issues Recommendations on Global Resolution Planning

North of the Border Update

Ancillary Recognition Orders – To “Probe” the Legitimate Expectations of Creditors

Insurance, Jurisdiction & Appeals, Mass Torts

Other People’s Money (Part I)

Chapter 11 Plans, Releases & Exculpations

Sacrificing Clarity on the Altar of “Comprehensiveness”: Judge Gerber Suggests Using White Space and Headings in Drafting Complicated Plan Provisions

Dodd-Frank & Financial Institution Regulation

FDIC Proposed Rule Will Determine Which Companies Are Covered By the New Orderly Liquidation Authority

Chapter 11 Plans

Wrapping up Gifting

Is the Debtor Bankrupt Enough? Application of the Chapter 9 Insolvency Test to the City of Vallejo

363 Sales, Jurisdiction & Appeals

Certificate Holders Are Told to Take a Seat: Court Denies Standing and Finds that Certificate Holders Are Not Parties in Interest

North of the Border Update

Creeping Rollups: Repaying Pre-Petition Secured Debt Under the CCAA Under a DIP Facility

Court Holding “Value” in Section 363(f)(3) Means Actual Aggregate Value of Liens Securing the Property Rather Than Face “Amount” of Liens Gets Undersecured Lenders Wired Up

Corporate Governance & Fiduciary Duties

“The Dog That Has Not Barked” – Delaware Court of Chancery Holds That Delaware LLC Act Bars Creditor Derivative Suits on Behalf of LLCs

Supreme Court’s Denial of Certiorari in Apex Oil Leaves Standing Seventh Circuit Ruling that Environmental Cleanup Injunctions are Not Dischargeable in Bankruptcy

Roll-up, Roll-up, Read All about It!

Contributor(s)

David
Griffiths

Securitizations & Hedges, Utilities

Section 366’s Backdoor: Closing the Forward Contract Loophole for Utility Suppliers