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Article

Jones Day | USA | 2 Dec 2016

In Brief: Delaware Bankruptcy Court Clarifies Burden of Proof for Automatic Stay Relief

In In re Abeinsa Holding, Inc., 2016 BL 335099 (Bankr. D. Del. Oct. 6, 2016), the U.S. Bankruptcy Court for the District of Delaware addressed what

Article

Schulte Roth & Zabel LLP | USA | 8 Sep 2011

Second Circuit rejects borrower’s economic duress challenge and upholds validity of release contained in post-default forbearance agreement

On Aug. 26, 2011, the U.S. Court of Appeals for the Second Circuit held that a release of the lender given by the borrower in a forbearance agreement was not induced by economic duress and was therefore enforceable.

Article

Day Pitney LLP | USA | 24 Feb 2011

New Jersey court analyzes counterclaim waiver provision in commercial loan documents

In a recent decision, the New Jersey Superior Court, Appellate Division, analyzed the enforceability of a counterclaim waiver provision contained in commercial loan documents.

Article

Reed Smith LLP | USA | 13 Sep 2010

The Third Circuit expands the substantial-performance test to determine if a trademark license contract is executory

In re Exide Technologies, 607 F3d 957 (3rd Cir June 1, 2010) CASE SNAPSHOT This is an interesting case of seller's remorse.

Article

Morgan Lewis | USA | 7 Dec 2009

Recent noteworthy decisions fall 2009

In re TOUSA, Inc., 408 B.R. 913 (Bankr. S.D. Fla. 2009) - prepetition lenders could not assert third-party claims against the debtors for breach of contract based on loan document representation that debtor borrowers, on a consolidated basis, would be solvent after the financing transaction because such claims did not depend on the outcome of the fraudulent transfer claims of the creditors, which asserted that individual debtor subsidiaries were insolvent.

Article

Winston & Strawn LLP | USA | 19 Nov 2009

New York’s highest court narrows restrictions on transfer of claims

The New York Court of Appeals ruled on October 15, 2009 that transfers of legal claims do not violate New York’s champerty statute even where the transferee intends to enforce the claims in court, so long as the purpose of the transfer is not to profit from the costs of the resulting litigation.

Article

Jones Day | USA | 1 Aug 2008

Can an executory contract lose its executoriness? "Maybe," says the Second Circuit

The ability of a chapter 11 debtor-in-possession (“DIP”) or bankruptcy trustee to assume or reject unexpired leases or contracts that are “executory” as of the bankruptcy filing date is one of the most important entitlements created by the Bankruptcy Code.

Article

Cadwalader Wickersham & Taft LLP | USA | 31 Jul 2008

Contract party’s full performance does not prevent rejection of contract

In COR Route 5 Co. v. Penn Traffic Co.1 (In re Penn Traffic Co), the United States Court of Appeals for the Second Circuit held that a non-debtor party to an executory contract may not, by fulfilling its contractual obligations post-petition, deprive the debtor of its ability to reject an executory contract.

Article

Cadwalader Wickersham & Taft LLP | USA | 21 Sep 2007

Pre-plan settlements that violate the absolute priority rule may face obstacles

In Motorola, Inc. v. Official Committee of Unsecured Creditors (In re Iridium Operating LLC), 478 F.3d 452 (2d Cir. 2007), the Official Committee of Unsecured Creditors (the “Committee”) and the debtors’ lenders sought approval of a settlement prior to confirmation of a plan of reorganization.

Article

Reed Smith LLP | USA | 19 Feb 2007

Claim for failed stock trade is subject to mandatory subordination

In a case of first impression, the U.S. Court of Appeals for the Second Circuit has held that a claim for damages based on a chapter 11 debtor’s failure to issue shares of its common stock in exchange for a claimant’s stock in another company pursuant to a termination agreement is subject to mandatory subordination.

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