Business Restructuring Review Vol. 21, No. 5 | September–October 2022
In This Issue:
Lawyer Spotlight: Gregory M. Gordon
Greg Gordon represents clients in complex, high-profile chapter 11 cases and corporate restructurings. His experience includes out-of-court restructurings, prepackaged bankruptcies, distressed M&A transactions, and cross-border insolvencies. He has assisted clients in achieving permanent resolutions of mass tort liabilities, including asbestos and talc liabilities. Recently, Greg successfully represented LTL Management, an affiliate of Johnson & Johnson, in a chapter 11 case it filed to resolve its talc liability. Greg is located in the Dallas Office and is a fellow in the American College of Bankruptcy.
Texas District Court: Bankruptcy Sale Break-Up Fee Satisfied Both Business Judgment Test and Administrative Expense Standard
In In re Bouchard Transp. Co., Inc., 639 B.R. 697 (S.D. Tex. 2022), the U.S. District Court for the Southern District of Texas affirmed a bankruptcy court order approving a $3.3 million break-up fee and more than $885,000 in expense reimbursement to a disappointed "stalking-horse" bidder in an auction of the debtors' assets, finding that the payments satisfied both the business judgment test under section 363(b) of the Bankruptcy Code and the standard for approval of administrative expense claims under section 503(b). [read more … ]
Denial of Chapter 11 Plan Confirmation Unwarranted Even if Plan Support Agreements Violated Disclosure Requirements
In In re LATAM Airlines Grp. S.A., 2022 WL 2206829 (Bankr. S.D.N.Y. June 18, 2022) (unpublished opinion), as amended, 2022 WL 2541298 (Bankr. S.D.N.Y. July 7, 2022), stay pending appeal denied, No. 20-11254 (JLG) (Bankr. S.D.N.Y. July 7, 2022), certification denied, No. 20-11254 (JLG) (Bankr. S.D.N.Y. July 26, 2022), aff'd, 2022 WL 3910718 (S.D.N.Y. Aug. 31, 2022), the U.S. Bankruptcy Court for the Southern District of New York, in an unpublished opinion, overruled an objection to confirmation of a chapter plan based on the debtors' alleged violation of the chapter 11 plan solicitation requirements by entering into agreements with certain creditors, prior to the court's approval of a disclosure statement, that obligated them to vote in favor of a plan in exchange for allowance of their claims. According to the court, even if those plan support agreements were improper, the only remedy for the violation was disallowance of the creditors' votes, which would not change the outcome of the voting process. [read more … ]
Third Circuit Sets Standard for Appointment of Future Claims Representatives in Asbestos Bankruptcy Cases
In In re Imerys Talc America, Inc., 38 F.4th 361 (3d Cir. 2022), the U.S. Court of Appeals for the Third Circuit ruled as a matter of first impression that a future claims representative ("FCR") in an asbestos case must be more than merely a "disinterested person"—the standard applied to some professional retentions in bankruptcy. Instead, like the members of official creditors' committees, an FCR must be not only free of conflicts of interest, but also fulfill fiduciary duties to future claimants, including duties of undivided loyalty and honesty. [read more … ]
Second Circuit Rules that Bankruptcy Courts May Award Appellate Legal Fees as Sanction for Contempt
In Law Offices of Francis J. Reilly, Esq. v. Selene Finance, L.P. (In re DiBattista), 33 F.4th 698 (2d Cir. 2022), the U.S. Court of Appeals for the Second Circuit held in an apparent matter of first impression that a bankruptcy court erroneously concluded that it did not have the power to award attorneys' fees incurred on appeal by a debtor seeking to enforce a contempt order for violations of a bankruptcy discharge order. [read more … ]
Seventh Circuit: Secured Creditor that Participated in Chapter 11 Case Bound by Terms of Confirmed Plan that Extinguished Lien
In In re Aguirre, 37 F.4th 427 (7th Cir. 2022), the U.S. Court of Appeals for the Seventh Circuit affirmed a lower court ruling that, because a tax lien creditor was "a party in the bankruptcy case," the creditor's tax lien did not pass through bankruptcy unaffected by the terms of a confirmed chapter 11 plan that extinguished the lien in exchange for an agreement to pay the creditor's secured claim in full in cash. The court also vacated an order directing a state court to vacate a tax deed issued to the creditor. [read more … ]
Eleventh Circuit Rules that Coal Act Payment Obligations Arising in 2016 Were Discharged by 1995 Chapter 11 Plan
In U.S. Pipe & Foundry Co. v. Holland (In re U.S. Pipe & Foundry Co.), 32 F.4th 1324 (11th Cir. 2022), a divided panel of the U.S. Court of Appeals for the Eleventh Circuit ruled that certain debtors' alleged obligation to pay retiree health benefits mandated by the Coal Industry Retiree Health Benefit Act of 1992 were discharged in 1995 upon the confirmation of a chapter 11 plan, even though the payment obligation was not triggered until 2016. According to the majority, the payment obligation was a "claim" in 1995 and was therefore discharged upon confirmation of the debtors' plan. [read more … ]
Delaware Supreme Court: No "Common Law Insolvency Exception" Permitting Delaware Corporation to Transfer Assets to Creditors in Lieu of Foreclosure Without Shareholder Consent
In Stream TV Networks, Inc. v. SeeCubic, Inc., 2022 WL 2149437 (Del. June 15, 2022), the Delaware Supreme Court vacated and reversed a 2020 ruling by the Delaware Court of Chancery that the assets of Stream TV Networks, Inc. ("Stream"), an insolvent Delaware-incorporated 3-D television technology company, could be transferred to an affiliate of two of Stream's secured creditors in lieu of foreclosure without seeking the approval of Stream's shareholders under section 271 of the General Corporation Law of Delaware or Stream's certificate of incorporation. [read more … ]
Fifth Circuit: District Court Improperly Referred Bankruptcy Appeal to Magistrate Judge for Final Determination
In In re South Central Houston Action Council, 38 F.4th 471 (5th Cir. 2022), the U.S. Court of the Appeals for the Fifth Circuit vacated a magistrate judge's ruling on appeal from a bankruptcy court judgment, ruling that the district court improperly referred the appeal to the magistrate judge for a final disposition, rather than a recommendation subject to review and adoption by the district court. [read more … ]
Newsworthy
For the third consecutive year, Law360 has named Jones Day a "Ceiling Smasher" for having one of the top percentages of women partners in law firms with more than 600 lawyers.
Jones Day recently ranked "Best of the Best" in 12 categories in the first-of-its-kind report "Associate Satisfaction A-Listers 2022: BTI Survey of Law Firms Where Associates are Happiest." The BTI Consulting Group notes that Jones Day's results surpassed the "majority of the other 650 firms competing for business at large companies whose associates responded to the survey."
Bruce Bennett (Los Angeles) was named to the Daily Journal's 2022 list of Top Bankruptcy Lawyers.
The 2023 edition of The Best Lawyers in Germany™, in cooperation with Handelsblatt, one of Germany's leading business publications, recognized Dr. Olaf Benning (Frankfurt) in the field of Restructuring and Insolvency Law.
The 2022 edition of The Legal 500 EMEA guide named Fabienne Beuzit (Paris) as a "Next Generation Partner" in the field of Insolvency.
On September 6, 2022, Corinne Ball (New York) gave a presentation regarding cross-border bankruptcy cases under chapter 15 of the Bankruptcy Code at the International Insolvency Institute's 22nd Annual Conference in Toronto, Canada.
Jeffrey B. Ellman (Atlanta), Kevyn D. Orr (Washington), Thomas M. Wearsch (Cleveland), Caitlin K. Cahow (Chicago), Anna Kordas (New York), James O. Johnston (Los Angeles), Aldo L. LaFiandra (Atlanta and New York), Heather Lennox (Cleveland and New York), Gregory M. Gordon (Dallas), Corinne Ball (New York), Carl E. Black (Cleveland), Bruce Bennett (Los Angeles), Brad B. Erens (Chicago), Genna Ghaul (New York), and Nicholas J. Morin (New York) were recognized in The Best Lawyers in America (2023) in the fields of Bankruptcy and Creditor Debtor Rights/Insolvency and Reorganization Law and/or Litigation—Bankruptcy.
On August 25, 2022, an article written by Corinne Ball (New York) titled "Scheme Proceeding Commenced by Cayman Holding Company to Restructure Its New York Governed Debt Incurred to Support Chinese Real Estate Operations Obtains Recognition under Chapter 15 in 'Modern Land'" was published in the New York Law Journal.
