Read full biography at www.orrick.com

Posts by: Douglas Mintz

Supreme Court Hears Oral Argument in Jevic on Whether Distribution of Settlement Proceeds May Depart From Statutory Priority Scheme

 

The United States Supreme Court heard oral arguments on December 7, 2016 in Czyzewski v. Jevic Holding Corp. The case poses a question that has divided the Second, Third, and Fifth Circuits: Whether a bankruptcy court may authorize the distribution of settlement proceeds in a way that departs from the statutory priority scheme in the Bankruptcy Code, including through a so-called “structured settlement.” READ MORE

Sixth Circuit Finds Bankruptcy Court Cannot Force City to Provide Services in Chapter 9

On November 14, 2016, the United States Court of Appeals for the Sixth Circuit held that courts in chapter 9 cases lack authority to order a municipal debtor to provide services to its constituents. Affirming the bankruptcy court’s dismissal of customers’ claims arising from the termination of their water service by the Detroit Water and Sewerage Department, the Sixth Circuit held that section 904 of the Bankruptcy Code prohibits a chapter 9 court from entering orders that “interfere” with a municipality’s “political [and] governmental powers.” In re City of Detroit, Mich., No. 15-2236, 2016 WL 6677715 (6th Cir. Nov. 14, 2016). READ MORE

Third Circuit Departs from Momentive and Reinstates EFIH Noteholder Make-Whole Claims Causing Uncertainty over EFH’s Ability to Exit Bankruptcy

Recently, the Third Circuit reversed decisions issued by the Delaware Bankruptcy and District Courts and permitted first and second lien noteholders of Energy Future Intermediate Holding Company LLC and EFIH Finance Inc. to receive payment of a make-whole premium. In re Energy Future Holdings Corp., No. 16-1351 (3d Cir. Nov. 17, 2016).  The decision, which is largely grounded in New York law, departs from recent controversial decisions issued by the Bankruptcy Court and District Court for the Southern District of New York in the Momentive bankruptcy, which we have previously discussed here and here.  In Momentive, the courts reached the opposite conclusion on substantially similar facts.  In Momentive, the courts reached the opposite conclusion on substantially similar facts.  In addition to creating a split between the Third Circuit and the Southern District of New York, the ruling creates uncertainty regarding the ability for the debtors in the long-running EFH bankruptcy to confirm their proposed chapter 11 plan. READ MORE

Supreme Court to Resolve Circuit Split Over Structured Dismissals

 

The Supreme Court again will be addressing the powers of bankruptcy courts. At the end of the term, the Court granted certiorari in Czyzewski v. Jevic Holding Corp. to decide whether a bankruptcy court may authorize the distribution of settlement proceeds in a way that violates the statutory priority scheme in the Bankruptcy Code.  No. 15-649, 2016 WL 3496769 (S. Ct. June 28, 2016).  The Supreme Court is expected to address this fundamental bankruptcy issue sometime early next year. READ MORE

Not So Fast – Supreme Court Holds Prepetition Fraudulent Transfer Precludes Post-Petition Discharge in Husky International

One of the goals of the Bankruptcy Code is to provide a debtor with a fresh start. The discharge of prepetition debts at the conclusion of a bankruptcy case is one of the most important ways to attain this fresh start.  On May 16, 2016, the Supreme Court made it harder for debtors to obtain a fresh start by broadening an exception to discharge.

Section 523(a)(2)(A) of the Bankruptcy Code provides that an individual debtor is not discharged from any debt “for money, property [or] services … to the extent obtained by false pretenses, a false representation, or actual fraud[.]” Circuits split as to whether actual fraud under Section 523(a)(2)(A) requires an affirmative misrepresentation; the Fifth Circuit had held that this was a necessary element to prevent discharge, but the Seventh Circuit had held that “actual fraud” encompassed a broader range of behaviors.

The Supreme Court resolved this split, rejecting the Fifth Circuit’s narrow interpretation and finding that the term “actual fraud” does not need to include an affirmative misrepresentation by the debtor. With this broader reading, debtors will be unable to discharge prepetition debts where there is evidence that they inappropriately siphoned of their assets prior to filing for bankruptcy. Husky Int’l Elecs., Inc. v. Ritz, No. 15-145, 2016 WL 2842452 (U.S. May 16, 2016). READ MORE

Burst Again: Sabine Bankruptcy Court Issues Binding Ruling Finding No Covenants Running with Land

Earlier this year, we covered Judge Shelley Chapman’s ruling in the Sabine bankruptcy, permitting the Debtors to reject a handful of gathering and other midstream agreements. Previously, Judge Chapman permitted rejection on the grounds that the Debtors exercised their reasonable business judgement in doing so.  At that time, the Court issued a “non-binding” ruling on whether the agreements were (or contained) “covenants running with the land” that would have rendered rejection impossible or useless.

On May 3, 2016, approximately six weeks later, Judge Chapman reached a final “binding” ruling on this open issue – holding that the contracts do not constitute (or include) covenants running with the land, and can be rejected in full. The Court largely reiterated its prior analysis – and even attached the prior opinion to the new opinion.  The Court also noted for the first time that, if the contracts had contained covenants affecting the value and use of the real property, they likely would have defaulted the Debtors’ credit facility.  Mem. Decision on Motions of Nordheim Eagle Ford Gathering, LLC et al. at 11, In re Sabine Oil & Gas Corp., No. 15-11835 (Bankr. S.D.N.Y., May 3, 2016).

READ MORE

Burst Pipeline? Bankruptcy Court Rules Sabine Can Reject Midstream Contracts

Bankruptcy Judge Shelley Chapman held that Sabine Oil & Gas Corp. has satisfied the standards for rejection of several gathering and handling agreements between Sabine and its midstream counter-parties, Nordheim Eagle Ford Gathering, LLC and HPIP Gonzales Holdings, LLC. The ruling has limits.  The matter ultimately turns on whether certain covenants “run with the land” under Texas law.  While the Court held that Sabine exercised reasonable business judgment in rejecting the agreements, the Court declined to decide “in a binding way the underlying legal dispute with respect to whether the covenants at issue run with the land,” and instead offered a “non-binding” analysis to determine the reasonableness of Sabine’s rejection.  Thus, if the counter-parties can demonstrate that the covenants do run with the land in an adversary proceeding, Sabine may not be able to terminate those covenants. In re Sabine Oil & Gas Corp., No. 15011835 (SCC) (Bankr. S.D.N.Y. Mar. 8, 2016).

How did Judge Chapman come to this ruling and how will it affect agreements between upstream and midstream providers? See below for background on this case, the two main arguments and an analysis of potential implications this case may have, particularly on midstream counter-parties who may have thought they were protected from upstream credit risk.

READ MORE

Oil & Gas Bankruptcy Issues: Part 5 Bankruptcy Issues for Secured Creditors

Part 5: Bankruptcy Issues for Secured Creditors

In the final installment of this series on the oil & gas industry, Orrick Restructuring Chair Ron D’Aversa and Restructuring Partner Doug Mintz survey the bankruptcy landscape for the oil & gas industry in the current low-price climate, outlining strategic reasons for bankruptcies, how unencumbered assets make for an atypical bankruptcy case, and how valuation and new borrower options could ultimately lead to adversarial cases.

If you wish to skip ahead, select one of the below topics:

Where will the next bankruptcy filings occur?

How will financing play out in these bankruptcy cases and what are the important variables to consider?

What are some of the unique issues associated with sales in these cases?

What are the new options available to borrowers in these cases?

How will valuation, cramdowns and unencumbered collateral affect these cases?

For additional posts in this series, please click here: Part 1, Part 2, Part 3, Part 4.

Oil & Gas Bankruptcy Issues: Part 4 Liens in Bankruptcy Cases

Part 4: Liens in Bankruptcy Cases

In this fourth of five videos on the oil & gas industry, Orrick Restructuring Chair Ron D’Aversa and Restructuring Partner Doug Mintz go over the often complicated process of securing liens for oil & gas operations, explaining what RBL liens typically attach to and how the liens compete with others invested parties.

If you wish to skip ahead, select one of the below topics:

What assets do RBL liens cover?

In addition to oil, what do liens typically attach to?

Would the lien still attach to the oil once it has been extracted?

How do liens that an RBL lender holds compete with other liens?

For additional posts in this series, please click here: Part 1, Part 2, Part 3, Part 5.

Oil & Gas Bankruptcy Issues: Part 3 Unique Structuring Issues

Part 3: Unique Structuring Issues

In this third of five videos on the oil & gas industry, Orrick Restructuring Chair Ron D’Aversa and Restructuring Partner Doug Mintz explore the unique ways in which oil & gas interests are transferred, how these interests are treated in bankruptcy and offer clues as to what courts will look at when issues concerning carved-out interests arise.

If you wish to skip ahead, select one of the below topics:

How are oil & gas interests treated in bankruptcy cases?

How have courts weighed in on leases concerning oil & gas interests?

What are carved-out interests and how do they work?

How are carved-out interests treated in bankruptcy cases?

For additional posts in this series, please click here: Part 1, Part 2, Part 4, Part 5.