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First Court Of Appeals Decision Addresses Question Left Open In The Supreme Court’s Travelers Opinion: Can Unsecured Creditors Recover Post-Petition Attorney’s Fees?

Posted in Business Bankruptcy Issues, Recent Developments

On June 23, 2009, the U.S. Court of Appeals for the Ninth Circuit became the first Court of Appeals to answer the question left open in the U.S. Supreme Court’s March 2007 decision in Travelers Casualty & Surety Co. of America v. Pacific Gas & Electric Co. — whether post-petition attorney’s fees can be added to… Continue Reading

Section 363 Sales And Beyond: An M&A Lawyer’s Perspective On Purchasing Assets From Distressed Companies

Posted in Business Bankruptcy Issues, The Financially Troubled Company

With the economy suffering through the longest recession since the 1930s, it’s little wonder that much of the merger and acquisition ("M&A") activity these days has been focused on distressed companies. The Chrysler and General Motors cases may be the best-known examples, but Chapter 11 bankruptcy is frequently used by companies large and small to sell assets through Section 363… Continue Reading

General Motors Files Chapter 11 Bankruptcy In New York

Posted in Business Bankruptcy Issues, Recent Developments

General Motors Corp. filed for Chapter 11 bankruptcy protection this morning in the U.S. Bankruptcy Court for the Southern District of New York. Judge Robert E. Gerber has been assigned to preside over the case. A copy of GM’s bankruptcy petition is available here. The petition listed approximately $82 billion in assets and $172 billion… Continue Reading

Spring 2009 Edition Of Bankruptcy Resource Is Now Available

Posted in Business Bankruptcy Issues, Recent Developments

The Spring 2009 edition of the Absolute Priority newsletter, published by the Cooley Godward Kronish LLP Bankruptcy & Restructuring group, of which I am a member, has just been released. The newsletter gives updates on current developments and trends in the bankruptcy and workout area. Follow the links in this sentence to access a copy of… Continue Reading

Text Of Legislation To Repeal Certain Of BAPCPA’s Business Bankruptcy Changes Affecting Retailers Now Available

Posted in Business Bankruptcy Issues, Recent Developments

As reported in a post on the blog earlier this week, on April 2, 2009, Representative Jerrold Nadler (D-NY) introduced a bill entitled the "Business Reorganization and Job Protection Act of 2009." At that time the official text of the legislation was not available. The full text of the legislation, which has been referred to the Committee… Continue Reading

Legislation Introduced To Repeal Certain Business Bankruptcy Changes Made By BAPCPA’s 2005 Amendments

Posted in Business Bankruptcy Issues, Recent Developments

On April 2, 2009, Representative Jerrold Nadler (D-NY) introduced a bill entitled the "Business Reorganization and Job Protection Act of 2009." The bill has been co-sponsored by Representative Steve Cohen (D-TN), the Chairman of the Subcommittee on Commercial and Administrative Law of the United States House of Representatives Committee on the Judiciary. As of the date… Continue Reading

New Article Looks At BAPCPA’s Impact On Retailers In Chapter 11

Posted in Business Bankruptcy Issues, Recent Developments

My colleagues Lawrence C. Gottlieb, Michael Klein, and Ronald R. Sussman recently authored an article entitled "BAPCPA’s Effects on Retail Chapter 11s Are Profound," in the February 2009 edition of the The Journal of Corporate Renewal, published by the Turnaround Management Association. You can access a copy of the article by clicking on its title in the… Continue Reading

Free Online Bankruptcy Research Tool Now Updated

Posted in Business Bankruptcy Issues, Recent Developments

Last year I posted about the research binder that Chief Judge Randall J. Newsome of the United States Bankruptcy Court for the Northern District of California makes available to bankruptcy professionals and the public. Well, Chief Judge Newsome has now updated his binder as of February 5, 2009, covering cases through Volume 395 of Bankruptcy… Continue Reading

Amendments To The Federal Bankruptcy Rules Take Effect December 1, 2008

Posted in Business Bankruptcy Issues, Recent Developments

Nearly every year, changes are made to the Federal Rules of Bankruptcy Procedure — the ones that govern how bankruptcy cases are managed — to address issues identified by an Advisory Committee made up of federal judges, bankruptcy attorneys, and others. This year’s amendments to the national bankruptcy rules take effect on December 1, 2008.  Business Bankruptcy… Continue Reading

Fall 2008 Edition Of Bankruptcy Resource Is Now Available

Posted in Business Bankruptcy Issues, Recent Developments, The Financially Troubled Company

The Fall 2008 edition of the Absolute Priority newsletter, published by the Cooley Godward Kronish LLP Bankruptcy & Restructuring group, of which I am a member, has just been released. The newsletter gives updates on current developments and trends in the bankruptcy and workout area. Follow the links in this sentence to access a copy… Continue Reading

Second Liens And Recharacterization: Is More Litigation Around The Corner?

Posted in Business Bankruptcy Issues, The Financially Troubled Company

In many Chapter 11 bankruptcy cases, unsecured creditors investigate whether a basis exists to recharacterize existing secured debt as equity. The reason? A successful challenge can turn first or second lien secured debt into "back-of-the-line" capital contributions, enabling unsecured creditors to realize a much greater recovery. A recent article by two of my Bankruptcy & Restructuring Group colleagues at Cooley Godward Kronish LLP, Ronald R. Sussman… Continue Reading

The 2005 Bankruptcy Law Changes And Their Impact On Retail Reorganizations

Posted in Business Bankruptcy Issues, Recent Developments

On September 26, 2008, my partner Lawrence Gottlieb, the Chair of the Bankruptcy & Restructuring Group at Cooley Godward Kronish LLP, testified before the Subcommittee on Commercial and Administrative Law of the United States House of Representatives Committee on the Judiciary.  Joining him at the hearing were Professor Jay Westbrook of the University of Texas Law School… Continue Reading

The Credit Crisis And DIP Financing

Posted in Business Bankruptcy Issues, Recent Developments

The credit crisis has made it difficult for companies to borrow throughout the economy. It should come as little surprise then that the constriction in the credit markets is hitting Chapter 11 debtors in possession as well. According to an article entitled "Bankruptcy financing gets pricier and more elusive," debtor in possession financing (commonly known as "DIP financing") has recently… Continue Reading

Will Section 363 “Free And Clear” Sale Orders Survive An Appeal? A Recent Appellate Decision Raises New Doubts

Posted in Business Bankruptcy Issues, Recent Developments

The primary objective of any buyer at a Section 363 sale, whether one purchasing for cash or an existing secured creditor making a credit bid, is to obtain good title to the purchased assets free and clear of any liens, claims, or interests. However, a recent decision on this subject by the Bankruptcy Appellate Panel ("BAP") of the United States… Continue Reading

Supreme Court Decision Settles The Section 1146(a) Transfer Tax Exemption Issue

Posted in Business Bankruptcy Issues, Recent Developments

On June 16, 2008, the United States Supreme Court issued its decision in Florida Dept. of Revenue v. Piccadilly Cafeterias, Inc., the case involving whether Section 1146(a) of the Bankruptcy Code, which exempts from stamp or similar taxes any asset transfer “under a plan confirmed under section 1129 of the Code,” applies to transfers of assets occurring… Continue Reading

Latest Edition Of Bankruptcy Resource Now Available

Posted in Business Bankruptcy Issues, Recent Developments

The Spring 2008 edition of the Absolute Priority newsletter, published by the Cooley Godward Kronish LLP Bankruptcy & Restructuring group, of which I am a member, has just been released. The newsletter give updates on current developments in bankruptcies and workouts with the goal of keeping you "ahead of the curve" on these issues. Follow… Continue Reading

New Article Examines Whether Wire Transfers Can Immunize Payments To Shareholders In LBOs

Posted in Business Bankruptcy Issues, Recent Developments

Leveraged buyouts, known as LBOs, have frequently been the subject of fraudulent transfer challenges when the target company later files bankruptcy. As its name implies, the classic LBO involves the use of leverage — debt — to finance the acquisition of the target company’s stock. Often that new debt is secured by the assets of… Continue Reading

Free Bankruptcy Research Tool Available Online

Posted in Business Bankruptcy Issues, Recent Developments

Bankruptcy professionals and the public rarely get a chance to read a judge’s own research binder. Fortunately, however, Chief Judge Randall J. Newsome of the United States Bankruptcy Court for the Northern District of California has made his very helpful 348-page research binder available on the Court’s website. Follow the links in this sentence to access… Continue Reading

What Happened At The Supreme Court Oral Argument In The Section 1146(a) Bankruptcy Transfer Tax Exemption Case?

Posted in Business Bankruptcy Issues, Recent Developments

On Wednesday, March 26, 2008, the United States Supreme Court heard oral argument in the case of Florida Dept. of Revenue v. Piccadilly Cafeterias, Inc. A link to the transcript of the oral argument can be found below. The case presents the following question: Whether section 1146(a) of the Bankruptcy Code, which exempts from stamp… Continue Reading

Southern District Of New York Bankruptcy Court Proposes Amendments To Local Rules

Posted in Business Bankruptcy Issues, Recent Developments

The United States Bankruptcy Court for the Southern District of New York has announced proposed changes to its Local Bankruptcy Rules in light of the recent amendments to the Federal Rules of Bankruptcy Procedure that took effect on December 1, 2007. Many of the largest business bankruptcy cases are filed in the Southern District of… Continue Reading

North Of The Border: Reorganization Under Canada’s Companies’ Creditors Arrangement Act

Posted in Business Bankruptcy Issues

With the enormous amount of business between the United States and Canada these days, it’s little wonder that from time to time U.S. companies find themselves affected by a Canadian insolvency proceeding. A better understanding of Canada’s approach to bankruptcy and insolvency law can be helpful when sizing up how such a filing might affect… Continue Reading

Bankruptcy Rule Amendments: New Article Reviews The Important Changes

Posted in Business Bankruptcy Issues, Recent Developments

An article my partner Adam Rogoff, associate Seth Van Aalten, and I wrote was recently published in the January 2008 issue of Pratt’s Journal of Bankruptcy Law. The article discusses the significant amendments to the Federal Rules of Bankruptcy Procedure that took effect on December 1, 2007. Those amendments covered a range of procedures from omnibus… Continue Reading

Delaware Bankruptcy Court Adopts New Local Rule For Section 363 Sales

Posted in Business Bankruptcy Issues, Recent Developments

The Delaware Bankruptcy Court has recently adopted amended Local Rules, which became effective on February 1, 2008, and they include meaningful changes to the procedures governing Section 363 sales of assets. New Local Rule 6004-1, entitled "Sale and Sale Procedures Motions," requires additional disclosure and the highlighting of certain key provisions often seen in sale… Continue Reading

First Appellate Court Decision Addresses Question Left Open In The Supreme Court’s Travelers Opinion: Can Unsecured Creditors Recover Post-Petition Attorney’s Fees?

Posted in Business Bankruptcy Issues, Recent Developments

Happy New Year to everyone. I’m back from a holiday blogging break with a report on the first appellate decision to address the question left open in last year’s U.S. Supreme Court decision in Travelers Casualty & Surety Co. of America v. Pacific Gas & Electric Co. — whether post-petition attorney’s fees can be added to unsecured… Continue Reading