In Short -
The Situation: Insolvency officeholders increasingly find their investigations into a company's affairs frustrated by the comingling of records on a "group" server. Claims to privilege by other group entities (or...more
2/8/2023
/ Commercial Bankruptcy ,
Corporate Counsel ,
Creditors ,
Debtors ,
Discovery ,
Evidence ,
Fraud and Abuse ,
Insolvency ,
Investment Fraud ,
Ponzi Scheme ,
Privileged Documents ,
Serious Fraud Office (SFO) ,
UK
On October 14, 2022, the U.S. Court of Appeals for the Fifth Circuit issued a long-awaited ruling on whether Ultra Petroleum Corp. (“UPC”) must pay a $201 million make-whole premium to noteholders under its confirmed chapter...more
Even before chapter 15 of the Bankruptcy Code was enacted in 2005 to govern cross-border bankruptcy proceedings, the enforceability of a foreign court order approving a restructuring plan that modified or discharged U.S....more
As discussed in previous installments of this White Paper series, the Lummis-Gillibrand Responsible Financial Innovation Act (the "Bill") proposes a comprehensive statutory and regulatory framework in an effort to bring...more
On June 6, 2022, the U.S. Supreme Court issued a much-awaited decision, Siegel v. Fitzgerald, No. 21-441, __. U.S. __, 2022 WL 1914098 (U.S. June 6, 2022), holding unconstitutional certain aspects of Congress’s 2017 amendment...more
Bankruptcy and appellate courts disagree over whether a creditors' committee has the unconditional right to intervene in an adversary proceeding commenced during a chapter 11 case. The issue has created a split among the...more
FIFTH CIRCUIT WEIGHS IN ON BANKRUPTCY ASSET SALES FREE AND CLEAR OF LEASEHOLD INTERESTS -
The ability of a trustee or chapter 11 debtor-in-possession (“DIP”) to sell bankruptcy estate assets “free and clear” of competing...more
Courts disagree over whether a foreign bankruptcy case can be recognized under chapter 15 of the Bankruptcy Code if the foreign debtor does not reside or have assets or a place of business in the United States. In 2013, the...more
MODIFICATION OF SECURED LOAN UNDER CRAMDOWN CHAPTER 11 PLAN WARRANTED DUE TO PLAN FEASIBILITY THREAT -
Many recent court rulings concerning the treatment of secured creditors under a chapter 11 plan have focused on...more
3/31/2022
/ Absolute Priority Rule ,
Bankruptcy Code ,
Bankruptcy Court ,
Certiorari ,
Chapter 11 ,
Chapter 15 ,
Commercial Bankruptcy ,
Cramdown ,
Denial of Certiorari ,
Foreign Bankruptcies ,
Hertz ,
Make-Whole Premium ,
Reorganizations ,
SCOTUS
The foundation of chapter 15 of the Bankruptcy Code and similar legislation enacted by other countries to govern cross-border bankruptcy cases is "comity" and cooperation among U.S. and foreign courts. The importance of these...more
1/28/2022
/ Adversary Proceedings ,
Bankruptcy Code ,
Bankruptcy Court ,
Brazil ,
Chapter 15 ,
Commercial Bankruptcy ,
Creditors ,
Debtors ,
Dismissals ,
Foreign Bankruptcies ,
Jurisdiction
Courts disagree over whether a foreign bankruptcy case can be recognized under chapter 15 of the Bankruptcy Code if the foreign debtor does not reside or have assets or a place of business in the United States....more
After commercial Chapter 11 filings soared to their highest levels in more than a decade in 2020, the numbers gradually came back to Earth in the latter part of 2020 and, in 2021, fell well below annual averages. The primary...more
Despite the absence of any explicit directive in the Bankruptcy Code, it is well understood that a debtor must file a chapter 11 petition in good faith. The bankruptcy court can dismiss a bad faith filing "for cause,"...more
New York Bankruptcy Court Rules That Good Faith Is Not The Gatekeeper To Chapter 15 -
Despite the absence of any explicit directive in the Bankruptcy Code, it is well understood that a debtor must file a chapter 11...more
11/10/2021
/ Bankruptcy Code ,
Bankruptcy Court ,
Chapter 11 ,
Chapter 15 ,
Chapter 7 ,
Commercial Bankruptcy ,
Corporate Restructuring ,
Creditors ,
Debtors ,
Good Faith ,
Insolvency ,
Leveraged Buyout
Chapter 15 petitions seeking recognition in the United States of foreign bankruptcy proceedings have increased significantly during the more than 16 years since chapter 15 was enacted in 2005. Among the relief commonly sought...more
11/10/2021
/ Appeals ,
Bankruptcy Code ,
Bankruptcy Court ,
Chapter 15 ,
Commercial Bankruptcy ,
Cross-Border ,
Discovery ,
Foreign Bankruptcies ,
Insolvency ,
Transfer of Assets ,
UNCITRAL
Despite the absence of any explicit directive in the Bankruptcy Code, it is well understood that a debtor must file a chapter 11 petition in good faith. The bankruptcy court can dismiss a bad faith filing "for cause," which...more
11/10/2021
/ Bankruptcy Code ,
Bankruptcy Court ,
Chapter 11 ,
Chapter 15 ,
COMI ,
Commercial Bankruptcy ,
Creditors ,
Cross-Border ,
Debtors ,
Foreign Bankruptcies ,
Good Faith ,
Liquidation ,
Reorganizations ,
UNCITRAL
Secured Lender’s Credit Bid Right In Bankruptcy Sale Denied -
A secured creditor’s right to “credit bid” the amount of its allowed claim in a bankruptcy sale of its collateral is an important creditor protection codified...more
U.S. courts have a long-standing tradition of recognizing or enforcing the laws and court rulings of other nations as an exercise of international "comity." It has been generally understood that recognition of a foreign...more
Background of the Pilot Measure The mechanism set out in "The Supreme People's Court's Opinion on Taking Forward a Pilot Measure in relation to the Recognition of and Assistance to Insolvency Proceedings in the Hong Kong...more
On July 15, 2021, a three-judge panel of the U.S. Court of Appeals for the Second Circuit held in Homaidan v. Sallie Mae, Inc., et al. that the private student loans at issue were not subject to the discharge exemption in...more
Chapter 15 Update: U.S. Bankruptcy Court Refuses To Enforce Order Approving Indonesian Debt Restructuring Plan Due To Third-party Releases -
Cross-border bankruptcy cases filed in the U.S. under chapter 15 of the...more
7/23/2021
/ Article III ,
Bankruptcy Court ,
Chapter 11 ,
Chapter 15 ,
Comity ,
Commercial Bankruptcy ,
Foreign Bankruptcies ,
Restructuring ,
Safe Harbors ,
Setoff Rights ,
Sharia Law ,
Standing ,
Subordination Agreement ,
Third-Party ,
Tolling
In In re Bankr. Est. of Norske Skogindustrier ASA, 2021 WL 1687903 (Bankr. S.D.N.Y. Apr. 29, 2021), the U.S. Bankruptcy Court for the Southern District of New York held that a foreign representative in a case under chapter 15...more
In cases under both chapter 15 of the Bankruptcy Code and its repealed predecessor, section 304, U.S. bankruptcy courts have routinely recognized and enforced orders of foreign bankruptcy and insolvency courts as a matter of...more
Cross-border bankruptcy cases filed in the U.S. under chapter 15 of the Bankruptcy Code on behalf of foreign businesses doubled during 2020 and are on pace to set another record-breaking year in 2021 (with more than 123...more
In This Issue:
Tenant's Election to Retain Possession of Rejected Lease Premises Preserves Obligations Under Related Agreements -
Section 365(h) of the Bankruptcy Code provides special protection for tenants if a...more