Bankruptcy & Restructuring
Viewpoints
Filter by:
The Automatic Stay: Supreme Court Finds that Retaining Debtors’ Property, Despite Turnover Demands, is Not a Stay Violation
January 21, 2021 | Blog | By Eric Blythe
The Automatic Stay: Supreme Court Finds that Retaining Debtors’ Property, Despite Turnover Demands, is Not a Stay Violation
Read more
Amendments to Bankruptcy Rules Set to Take Effect on December 1, 2020
December 1, 2020 | Blog | By Tim McKeon
On December 1, 2020, certain amendments to the Federal Rules of Bankruptcy Procedure take effect. The amendments largely modify rules governing bankruptcy appeals, but also impact Rules 2002 and 2004.
Read more
Bankruptcy Court Upholds Indian Tribe’s Sovereign Immunity
November 5, 2020 | Blog | By Aaron Williams
363 Sales as a Health Care M&A Tool, Part 2 – Pros and Cons for Buyers and Sellers
September 11, 2020 | Blog | By Deborah Daccord, William Kannel, Rachel Irving Pitts, David Chorney, Tim McKeon
Over the summer, we wrote about why health care companies may want to consider buying assets out of bankruptcy, taking advantage of the Bankruptcy Code Section 363 sale process (a "363 Sale”). We are back with our second post, to provide more detail to the process and discuss some pros and cons of 363 Sales.
As a refresher, a 363 Sale couples a flexible and fast process with ample liability protection for willing buyers. The primary benefit of a 363 Sale is that a buyer can acquire the debtor’s assets free and clear of virtually all liens, claims, and interests burdening the assets and the debtor. And when Section 363 is coupled with the “assumption and assignment” provisions of Section 365 of the Bankruptcy Code, a debtor is able to assign most contracts or leases that a buyer may wish to purchase, including contracts with ironclad anti-assignment language, provided that certain conditions are satisfied. When a target is experiencing severe financial distress, the benefit of acquiring assets “free and clear” is extraordinarily valuable.
Read more
As a refresher, a 363 Sale couples a flexible and fast process with ample liability protection for willing buyers. The primary benefit of a 363 Sale is that a buyer can acquire the debtor’s assets free and clear of virtually all liens, claims, and interests burdening the assets and the debtor. And when Section 363 is coupled with the “assumption and assignment” provisions of Section 365 of the Bankruptcy Code, a debtor is able to assign most contracts or leases that a buyer may wish to purchase, including contracts with ironclad anti-assignment language, provided that certain conditions are satisfied. When a target is experiencing severe financial distress, the benefit of acquiring assets “free and clear” is extraordinarily valuable.
Third Circuit Upholds Cramdown, Downplays Subordination Agreement
September 4, 2020 | Blog | By Aaron Williams
The U.S. Court of Appeals for the Third Circuit recently confirmed that bankruptcy plans need not always recognize subordination agreements among creditors.
Read more
363 Sales as a Health Care M&A Tool, Part 1 – Overview
July 28, 2020 | Blog | By Deborah Daccord, William Kannel, Rachel Irving Pitts, Tim McKeon, David Chorney
Although health care may be well positioned to weather an economic downturn as an industry, certain sectors, including ambulatory surgery, vision, dermatology, dental, and other physician practices will bear the brunt of COVID-19 stay-at-home orders and patients delaying non-emergency care. While the onset of COVID-19 has delayed or derailed many transactions, strategic buyers should consider all of the different transaction tools available them to help maximize value and successfully get to closing. For knowledgeable investors and strategic buyers, now is the time to position yourself to acquire valuable health care assets at steep discounts.
For those unfamiliar with 363 Sales, a 363 Sale couples a flexible and fast process with ample liability protection for willing buyers. The primary benefit to a 363 Sale is that a buyer can acquire the debtor’s assets free and clear of virtually all liens, claims and encumbrances burdening the assets and the debtor. When a target is experiencing severe financial distress, the benefit of acquiring assets “free and clear of all liens” is extraordinarily valuable.
Read more
For those unfamiliar with 363 Sales, a 363 Sale couples a flexible and fast process with ample liability protection for willing buyers. The primary benefit to a 363 Sale is that a buyer can acquire the debtor’s assets free and clear of virtually all liens, claims and encumbrances burdening the assets and the debtor. When a target is experiencing severe financial distress, the benefit of acquiring assets “free and clear of all liens” is extraordinarily valuable.
Top 10 Questions Human Resources May Have When Their Company is Filing for Chapter 11 Protection
June 2, 2020 | Blog | By Andrew Matzkin, Kaitlin R. Walsh, William Kannel
Businesses in a wide range of industries may now be forced to consider bankruptcy given the unprecedented economic challenges caused by the COVID-19 pandemic. This advisory is designed to provide a high-level view of issues to be considered by human resources when considering filing for Chapter 11 bankruptcy.
Read more
Are Leveraged Loans Subject To Securities Laws? It Depends…
June 1, 2020 | Blog | By Eric Blythe
Leveraged loans continue to be a topic of interest in the current environment, particularly when they are pooled and securitized as collateralized loan obligations. A recent decision sheds light on whether and when leveraged loans and similar instruments may be classified as securities and, therefore, be subject to securities laws.
Read more
Delaware Bankruptcy Court Rules that Shareholder Cannot Enforce “Golden Share” Blocking Right to Dismiss Bankruptcy Filed Without its Consent
May 27, 2020 | Blog | By Tim McKeon
As the COVID-19 pandemic continues to disrupt businesses and markets, and companies begin to look to bankruptcy courts for relief from the resulting liquidity and operational distress, the issue of creditor and shareholder “blocking rights” seems likely to become an important topic as parties attempt to protect their investments.
Read more
Fraud Investigations and Complex Asset Recovery in 2020: A Q&A With Mintz Cross-Border Asset Recovery Co-Chairs Dan Pascucci and Joe Dunn
April 27, 2020 | Blog | By Joseph Dunn, Daniel Pascucci
With courts and government agencies around the world enacting emergency measures in response to the Covid-19 pandemic – ranging from complete shutdowns to delays and limitations – advancing the ball in dispute resolution is more challenging than ever.
Read more
First Circuit Issues Important Ruling on Valuing Secured Claims in Settled Causes of Action
April 22, 2020 | Blog | By Tim McKeon
In a recent decision addressing valuation issues, the First Circuit has issued an important reminder – and warning – to creditors seeking to establish a secured claim in settlement proceeds based on a security interest in the settled claim. In short, the key lesson for would-be secured creditors is this – the value of a claim is not equal to the value of damages!
Read more
Small Business Chapter 11 Eligibility Expanded Under CARES Act
April 2, 2020 | Blog
President Trump signed the Small Business Reorganization Act of 2019 (the “SBRA”) into law in August of last year and it became effective on February 20, 2020. The SBRA amended the U.S. Bankruptcy Code and is designed to simplify and shorten the reorganization process for “small businesses” and to make the entire process more cost effective.
Read more
The Coronavirus Aid, Relief, and Economic Security Act: Assistance Available to Passenger Airlines and Airports
March 31, 2020 | Blog | By Tim McKeon, William Kannel
On March 27, 2020, President Trump signed into law the “Coronavirus Aid, Relief, and Economic Security Act” (the “CARES Act”), a $2+ trillion stimulus package intended to ease the economic and social disruptions facing the country in the wake of the COVID-19 outbreak.
Read more
Congress Acts to Mitigate COVID-19 Impact
March 18, 2020 | Blog | By Anthony DeMaio, William Kannel, Leonard Weiser-Varon
Below is an update on legislative efforts by Congress and the White House to address the coronavirus pandemic, prepared by our D.C. colleagues at ML Strategies, who are closely following these fluid and fast-moving developments. Efforts to provide a supply of low cost working capital to the many businesses and entities experiencing operational and/or cash flow disruption may be of particular interest to our bondholder clients.
Read more
Are Bankruptcy Blocking Provisions in Corporate Governance Documents Enforceable?
October 24, 2019 | Blog | By Paul J. Ricotta
Many equity sponsors are both shareholders and lenders to their portfolio companies. In that hybrid case, where the shareholder is also a creditor, can the shareholder enforce corporate governance provisions which restrict the ability of the company to file for bankruptcy? A recent decision from the Fifth Circuit Court of Appeals has answered that question in the affirmative - with caveats.
Read more
THE FIFTH CIRCUIT ADOPTS AN EXPANSIVE READING OF SECTION 510(b); SUBORDINATES CLAIM WITH ‘EQUITY CHARACTERISTICS’
October 1, 2019 | Blog | By Andrew B. Levin
In French v. Linn Energy, L.L.C. (In re Linn Energy, L.L.C.), the United States Court of Appeals for the Fifth Circuit addressed the scope of Bankruptcy Code Section 510(b), settling on an expansive reading of the Section, holding that a claim for “deemed dividends” should be subordinated.
Read more
The Risks of Imperfect Perfection, and How to Avoid Them
September 25, 2019 | Blog | By Leonard Weiser-Varon
Changes to Preference Practices Under New Bankruptcy Law
September 4, 2019 | Blog | By Tim McKeon
Decade Old Transactions Potentially Subject to Bankruptcy Clawback in Massachusetts
August 15, 2019 | Blog | By Eric Blythe
Transfers and transactions up to ten years old may be scrutinized, unwound and recovered by a trustee, the bankruptcy court sitting in Massachusetts recently held in the NECCO (think chalky wafer candy) bankruptcy case. The ruling, in a case of first impression in Massachusetts, expands the reach back period from the typical four-year period for fraudulent transfer recovery, so long as the IRS is a creditor in the case.
Read more
Supreme Court Adopts a “Rejection-as-Breach” Rule to Allow Licensee to Continue to Use Trademark Following Debtor’s Rejection of License
May 29, 2019 | Blog | By Tim McKeon
On May 20, 2019, the United States Supreme Court ruled that a debtor-licensor’s ‘rejection’ of a trademark license agreement under section 365 of the Bankruptcy Code does not terminate the licensee’s rights to continue to use the trademark. The decision, issued in Mission Product Holdings, Inc. v. Tempnology, LLC, resolved a split among the Circuits, but may spawn additional issues regarding non-debtor contractual rights in bankruptcy.
Read more
Viewpoint Editors
Eric R. Blythe
Associate
Charles W. Azano
Special Counsel
Amanda M. Blaske
Daniel S. Bleck
Member
Joseph R. Dunn
Member / Co-Chair, Cross-Border Asset Recovery Practice
William W. Kannel
Member / Chair, Bankruptcy & Restructuring Practice
Paul J. Ricotta
Member
Kaitlin R. Walsh
Special Counsel
Aaron M. Williams
Associate
Ian A. Hammel
Member
Abigail O'Brient
Member
Explore Other Viewpoints:
- Antitrust
- Appellate
- Arbitration, Mediation & Alternate Dispute Resolution
- Awards
- Bankruptcy & Restructuring
- Class Action
- Complex Commercial Litigation
- Construction
- Consumer Product Safety
- Cross-Border Asset Recovery
- Debt Financing
- Diversity
- EB-5 Financing
- Education & Nonprofits
- Employment, Labor & Benefits
- Energy & Sustainability
- Environmental Enforcement Defense
- Environmental Law
- FDA Regulatory
- Federal Circuit Appeals
- Financial Institution Litigation
- Government Law
- Health Care
- Health Care Compliance, Fraud and Abuse, & Regulatory Counseling
- Health Care Enforcement & Investigations
- Health Care Transactions
- Health Information Privacy & Security
- IP Due Diligence
- IPRs & Other Post Grant Proceedings
- Immigration
- Insolvency & Creditor Rights Litigation
- Institutional Investor Class Action Recovery
- Insurance & Financial Services
- Insurance Consulting & Risk Management
- Insurance and Reinsurance Problem-Solving & Dispute Resolution
- Intellectual Property
- Investment Funds
- Israel
- Licensing & Technology Transactions
- Life Sciences
- Litigation & Investigations
- M&A Litigation
- ML Strategies
- Medicare, Medicaid and Commercial Coverage & Reimbursement
- Mergers & Acquisitions
- Patent Litigation
- Patent Prosecution & Strategic Counseling
- Privacy & Cybersecurity
- Private Client
- Private Equity
- Pro Bono
- Products Liability & Complex Tort
- Project Development & Finance
- Public Finance
- Real Estate Litigation
- Real Estate Transactions
- Real Estate, Construction & Infrastructure
- Retail & Consumer Products
- Securities & Capital Markets
- Securities Litigation
- Sports & Entertainment
- Strategic IP Monetization & Licensing
- Tax
- Technology
- Technology, Communications & Media
- Trade Secrets
- Trademark & Copyright
- Trademark Litigation
- Venture Capital & Emerging Companies
- White Collar Defense & Government Investigations