bankruptcy

The Gorsuch Nomination: The Return of the Business Friendly Court?

 

President Donald Trump nominated Judge Neil Gorsuch, a federal appellate judge on the Tenth Circuit Court of Appeals, to fill the Supreme Court seat of Justice Antonin Scalia. Our Supreme Court and appellate team, led by partner Bob Loeb, took a look at Judge Gorsuch’s track record as a judge on key business issues like securities litigation, arbitration and bankruptcy, to speculate on his future as a potential justice. To read the full article, please click here.

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

Orrick Ranked a Top 10 Bankruptcy and Restructuring Firm by The Deal

 

The Deal’s latest Q3 2016 bankruptcy and out-of-court restructuring league tables again rank Orrick as a top bankruptcy and restructuring law firm. In the Out-of-Court Restructuring League Tables, Orrick earned a #6 ranking for creditor’s counsel in out-of-court restructurings. Additionally, the firm ranked #7 by billings in The Deal’s Bankruptcy League Tables for the third consecutive quarter in 2016. These are not the first league table distinctions Orrick’s Restructuring Group has garnered in 2016. In Q1, we were also ranked #5 for restructuring counsel to distressed companies. In 2015, we were earned an inclusion in the top ten bankruptcy legal advisor rankings in each quarter.

Over the past few months, Orrick’s Restructuring group has advised clients on several key restructuring matters, particularly in the areas of distressed energy and equipment finance. We have counseled a majority lender in the restructuring of Chesapeake Energy Corporation and the administrative agent in the restructuring of loans to Stonegate Production Company.

The Deal’s Bankruptcy League Tables are the industry’s only league tables focused solely on active bankruptcy and out-of-court-restructuring cases. These rankings are compiled on a quarterly basis through comprehensive deal intelligence to identify the top law, crisis management, investment, and non-investment firms and professionals involved in bankruptcy transactions throughout the United States.  Firms are ranked based on advice provided to creditors, debtors and out-of-court restructurings.

The Impact of PROMESA on Creditors

 

On June 30, 2016, the United States Senate passed the “Puerto Rico Oversight, Management and Economic Stability Act” (“PROMESA”) and it was quickly signed into law by President Obama.[1] PROMESA enables the Commonwealth of Puerto Rico and its public corporations and other instrumentalities in financial distress to restructure their debt.[2] The goal of PROMESA is to “bring solvency to Puerto Rico, build a foundation for future growth and ensure the island regains access to capital markets”.[3] PROMESA, though, is not limited to restructuring and enforcement of debt obligations or securities.  If you lent money or extended other forms of credit, or provided goods or services, to Puerto Rico or any of its instrumentalities, PROMESA may affect you. 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

Orrick Ranked Among Top Ten Bankruptcy Law Firms

The Deal has once again recognized Orrick as a Top Ten Bankruptcy Law Firm in its Q1 2016 Bankruptcy League Tables. After being named to the top ten in each quarter last year, Orrick extended the streak by gaining one spot in the rankings (now #7).

During a busy Q1 period, we advised several clients on a diverse blend of bankruptcy matters, with a particular emphasis in the areas of distressed energy, municipal debt and cross-border restructurings.

The Deal’s Bankruptcy League Tables are the industry’s only league tables focused solely on active bankruptcy cases. These rankings are compiled on a quarterly basis through comprehensive deal intelligence to identify the top law, crisis management, investment, and non-investment firms and professionals involved in bankruptcy transactions throughout the United States.

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).

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