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Intercreditor Agreements After Momentive: When A Hindrance Is Not A "Hindrance"
Intercreditor agreements—contracts that lay out the respective rights, obligations and priorities of different classes of creditors...
United States
18 Dec 2018
United States Court of Appeals for the Second Circuit Holds that Section 546(e) Safe Harbor Protects from Avoidance Transfers of Fictitious Profits in Connection with Madoff Ponzi Scheme
The United States Court of Appeals for the Second Circuit has affirmed a lower court ruling in In re Bernard L. Madoff Investment Securities LLC refusing to claw back transfers of fictitious profits made to customers in connection with a Ponzi scheme.
United States
12 Dec 2014
New York State’s Highest Court Clarifies Scope of "No-Action" Clause Under Trust Indenture
New York’s highest court has concluded that a "no-action" clause in a New York law-governed indenture does not bar the commencement of an action or proceeding on a securityholder’s common law or statutory claims relating to the securities ..
United States
19 Jun 2014
US Supreme Court Rules That Bankruptcy Courts Can Issue Proposed Findings In "Core" Matters Involving Stern v. Marshall-Type Claims
On June 9, 2014, the US Supreme Court issued a unanimous decision in Executive Benefits Insurance Agency v. Arkison ("Executive Benefits") that resolved a fundamental bankruptcy procedural issue that had arisen in the wake of Stern v. Marshall ("Stern").
United States
11 Jun 2014
Lehman Bankruptcy Court Addresses Scope Of The Bankruptcy Code’s Safe Harbor For Liquidation, Termination And Acceleration Of Swap Agreements
In Michigan State Housing Development Authority v. Lehman Brothers Derivatives Products, Inc., et al. (In re Lehman Brothers Holdings Inc., et al.) (Michigan State Housing),1 the US Bankruptcy Court for the Southern District of New York (the Bankruptcy Court) recently held that a provision in a swap agreement that shifted the methodology for calculating termination amounts upon the debtor counterparty’s bankruptcy was enforceable under the Bankruptcy Code’s safe harbor for liquidating, terminati
United States
10 Jan 2014
Fourth Circuit Addresses Protections For US IP Licenses In Case Under Chapter 15 Of The Bankruptcy Code
In a case of significant importance to licensees of US intellectual property, the US Court of Appeals for the Fourth Circuit held in "Jaffé v. Samsung Electronics Co. (In re Qimonda)", that a bankruptcy court did not err.
United States
13 Dec 2013
In Re KB Toys Inc.: Disallowance Cannot Be Washed Away
In In re KB Toys Inc., the US Court of Appeals for the Third Circuit affirmed the holdings of the lower courts that claims subject to disallowance under Section 502(d) of the Bankruptcy Code are "similarly disallowable in the hands of the subsequent transferee."
United States
27 Nov 2013
In Re Tribune: Defendants Successfully Challenge Individual Creditors Standing But District Court Rules That Section 546(e) Safe Harbor Does Not Bar Individual Creditors’ State Law Based Constructive Fraudulent Conveyance Claims
On September 23, 2013, the US District Court for the Southern District of New York in "In re Tribune" held that the individual creditor suits at issue were stayed because the Creditors’ Committee was in the process of prosecuting claims for intentional fraudulent conveyance that overlapped with such suits.
United States
30 Sep 2013
In Re Fairfield Sentry Ltd.: Second Circuit Court Of Appeals Provides Guidance To "COMI" Determinations In Chapter 15 Cases
On April 16, 2013, in Morning Mist Holdings Ltd. v. Krys (In re Fairfield Sentry Ltd.), the US Court of Appeals for the Second Circuit issued an important decision informing fundamental concepts of cross-border insolvency law as implemented pursuant to Chapter 15 of the Bankruptcy Code.
United States
23 Apr 2013
Successor Liability Applies To Claims Under The Fair Labor Standards Act According To Seventh Circuit Court Of Appeals
In a decision that might raise more questions than it answers, a federal appellate court has addressed the imposition of successor liability under the Fair Labor Standards Act.
United States
11 Apr 2013
Supreme Court Upholds Secured Lenders’ Right to Credit Bid in Sale Of Collateral Under Plan of Reorganization
The U.S. Supreme Court has ruled that a secured creditor cannot be denied its right to "credit bid".
United States
31 May 2012
Tousa III, Lenders Beware? Eleventh Circuit Upholds Bankruptcy Court’s Original Fraudulent Transfer Decision
On May 15, 2012, the Eleventh Circuit Court of Appeals (the "Circuit Court") issued an opinion in In re TOUSA, Inc., in which it affirmed the original decision of the bankruptcy court and reversed the appellate decision of the district court.
United States
18 May 2012
Lehman Bankruptcy Court Holds That Pre-Petition Collateral Transfers And Guaranties to Clearing Bank are Safe Harbored
On April 19, 2012, the Lehman bankruptcy court handed down its decision on the long-pending motion to dismiss filed by JPMorgan Chase Bank, N.A., in response to Lehman Brothers Holdings Inc.’s $8.6 billion avoidance action against it.
United States
27 Apr 2012
Bankruptcy Court Holds Assignment Of Voting Right Unenforceable
The Bankruptcy Court for the District of Massachusetts recently issued an opinion in In re SW Boston Hotel Venture, LLC1 in which it found, among other things, that the assignment of voting rights from a junior creditor to a senior creditor pursuant to an intercreditor agreement was unenforceable.
United States
1 Dec 2011
Lehman Bankruptcy Court Denies Contractual Right To Three-Party Setoff In Bankruptcy
The Bankruptcy Court for the Southern District of New York has held that a cross-affiliate netting provision in an ISDA swap agreement is unenforceable in bankruptcy.
United States
6 Oct 2011
New York District Courts Differ Regarding The Scope Of The Bankruptcy Code’s "Safe Harbors" For Protected Contracts
The District Court for the Southern District of New York recently issued an opinion in Picard v. Katz, et al., (In re Bernard L. Madoff Investment Securities LLC), which limits avoidance actions against a debtor-broker’s customers to those arising under federal law based on actual, rather than constructive, fraud.
United States
6 Oct 2011
Solar Company Bankruptcy Could Cause Concern For Lenders And Investors
The recent bankruptcy filing by California-based solar manufacturer, Solyndra, should be causing concern among both lenders and investors in the developing solar industry.
United States
13 Sep 2011
Commercial Paper Redemption "Safe Harbored" from Preference Liability per Second Circuit Court of Appeals
The US Court of Appeals for the Second Circuit recently held that redemptions of commercial paper made through the Depositary Trust Company (DTC) are entitled to the "safe harbor" protections afforded to settlement payments under Bankruptcy Code Section 546(e), and are, therefore, not preferential transfers, even though such payments were made prior to maturity.
United States
15 Jul 2011
Seventh Circuit Upholds Secured Lenders’ Right to Credit Bid in Asset Sales Under a Chapter 11 Plan
The US Court of Appeals for the Seventh Circuit has weighed in on the question of whether a secured creditor’s ability to credit bid—to offset the amount of the creditor’s debt against the purchase price of sale assets rather than bid in cash—is a right guaranteed by statute even in "cramdown" plans of reorganization conducted under Chapter 11 of the Bankruptcy Code.
United States
8 Jul 2011
In re TOUSA—Florida District Court Reverses and Quashes Bankruptcy Court Fraudulent Transfer Decision
On February 11, 2011, Judge Alan S. Gold of the United States District Court for the Southern District of Florida issued a 113-page opinion in "In re TOUSA, Inc." (the "District Court decision") in which he reversed the TOUSA bankruptcy court’s decision.
United States
25 Feb 2011
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