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Article

Jones Day | USA | 13 Oct 2011

History matters: historical breaches may undermine assumption of executory contracts

One of the primary fights underlying assumption of an unexpired lease or executory contract has long been over whether any debtor breaches under the agreement are “curable.” Before the 2005 amendments to the Bankruptcy Code, courts were split over whether historic nonmonetary breaches (such as a failure to maintain cash reserves or prescribed hours of operation) undermined a debtor’s ability to assume the lease or contract.

Article

Proskauer Rose LLP | USA | 9 Sep 2011

"Surcharge" as monetary relief after Amara

In CIGNA Corporation v. Amara, 131 S. Ct. 1866 (U.S. 2011), the Supreme Court held that ERISA plaintiffs who seek anything other than benefits pursuant to the governing plan document cannot assert their claims under ERISA Section 502(a)(1)(B).

Article

Fox Rothschild LLP | USA | 7 Jun 2011

Decision in DBSI delays motion for summary judgment

In an 11 page opinion published May 27, 2011, Judge Walsh granted a motion under F.R.C.P. 56(d) and quoted another opinion which says “where the facts are in possession of the moving party a continuance of a motion for summary judgment for purposes of discovery should be granted almost as a matter of course.”

Article

Proskauer Rose LLP | USA | 11 Apr 2011

Enforcement of oral agreements

In Central States, Southeast and Southwest Areas Pension Fund v. Auffenberg Ford, Inc., --- F.3d ---, 2011 WL 832937 (7th Cir. Mar. 11, 2011), the court held that an oral understanding, even if later committed to writing, cannot alter an employer’s written agreement to make contribution payments to a multiemployer fund.

Article

Wiley Rein LLP | USA | 24 Jul 2009

Alleged misconduct in personal capacity not covered wrongful act under nonprofit policy

The United States District Court for the District of Minnesota, applying Minnesota law, has granted an insurer's motion to dismiss a coverage action because wrongful conduct alleged in the underlying lawsuit did not arise solely out of the discharge of the insured's duties on behalf of the policyholder entity.

Article

Reed Smith LLP | USA | 27 Apr 2009

Third Circuit clarifies degree of control necessary to be an insider

A recent opinion from the U.S. Court of Appeals for the Third Circuit confirms that “actual control” over a debtor is not necessary to qualify as a nonstatutory “insider” for the purpose of extending the period for preference recovery under Section 547 of the Bankruptcy Code.

Article

Katten Muchin Rosenman LLP | USA | 13 Mar 2009

Supreme Court to resolve circuit split regarding excessive fund advisor fees

On March 9, the U.S. Supreme Court granted certiorari in Jones v. Harris Associates L.P., 527 F.3d 627 (7th Cir. 2008).

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