Business Restructuring Review | November - December 2018

In This Issue:

Reports of the Demise of "Gifting" Chapter 11 Plans Are an Exaggeration

In Hargreaves v. Nuverra Environmental Solutions Inc. (In re Nuverra Environmental Solutions Inc.), 590 B.R. 75 (D. Del. 2018), the U.S. District Court for the District of Delaware affirmed a bankruptcy court order confirming a nonconsensual chapter 11 plan that included "gifted" consideration from a senior secured creditor to fund unequal distributions to two separate classes of unsecured creditors. [read more . . . ]

First Impressions: Eleventh Circuit Rules That Equitable Mootness Applies in Chapter 9 Cases

In Bennett v. Jefferson County, Alabama, 899 F.3d 1240 (11th Cir. 2018), a panel of the U.S. Court of Appeals for the Eleventh Circuit ruled as a matter of first impression that the doctrine of equitable mootness applies in chapter 9 cases. According to the Eleventh Circuit panel, "[T]he correct result is to join the Sixth Circuit and the Ninth Circuit B.A.P. in allowing equitable mootness to apply in the Chapter 9 context." [read more . . . ]

In Brief: Delaware and New York District Courts Affirm Constitutional Authority to Grant Nonconsensual Releases in Chapter 11 Plan

In Opt-Out Lenders v. Millennium Lab Holdings II, LLC (In re Millennium Lab Holdings II, LLC), 2018 WL 4521941 (D. Del. Sept. 21, 2018), the U.S. District Court for the District of Delaware affirmed a bankruptcy court's ruling that it had the constitutional authority to grant nonconsensual third-party releases in an order confirming a chapter 11 plan. Shortly afterward, the U.S. District Court for the Southern District of New York reached the same conclusion in Lynch v. Lapidem Ltd. (In re Kirwan Offices SARL), 2018 WL 5095675 (S.D.N.Y. Oct. 10, 2018). [read more . . . ]

From the Top: Supreme Court Agrees to Consider Impact of Trademark License Agreement Rejection in Bankruptcy

On October 26, 2018, the U.S. Supreme Court granted a writ of certiorari in Mission Products Holdings, Inc. v. Tempnology, LLC, No. 17-1657, 2018 WL 2939184 (U.S. Oct. 26, 2018). In granting the petition, the Court agreed to consider whether, under section 365 of the Bankruptcy Code, a debtor-licensor's rejection of a trademark license agreement, which constitutes a breach of such contract under section 365(g), "terminates rights of the licensee that would survive the licensor's breach under applicable non-bankruptcy law." [read more . . . ]

Proposed Amendments to Chapter 15 of the Bankruptcy Code

On August 20, 2018, the National Bankruptcy Conference submitted a letter to representatives of the House Subcommittee on Regulatory Reform and the House Committee on the Judiciary that proposed certain technical and substantive amendments to chapter 15 of the Bankruptcy Code. [read more . . . ]


On October 29, 2018, Jones Day won the "Broken Bench" Award at the National Conference of Bankruptcy Judges' 92nd Annual Meeting in San Antonio, Texas, for the Best "Cinderella" rescue since the enactment of the Bankruptcy Code in 1978 for its work on behalf of the City of Detroit in its landmark chapter 9 case. The other nominees were the chapter 11 cases of Texaco, Inc.; Marvel Entertainment Group; Macy's, Inc./Federated Department Stores, Inc.; and General Motors Corp.

Dan T. Moss (Washington) has been selected by the American Bankruptcy Institute as one of its "40 Under 40" honorees for 2018. The ABI received applications from more than 300 individuals representing a large range of firms in the insolvency community. The ABI Steering Committee deliberated for two months before narrowing the list down to 40 honorees.

Corinne Ball (New York) was included in the "Top 50: 2018 Women New York—Metro Super Lawyers List."

Juan Ferré (Madrid) has been included among the world's leading Restructuring & Insolvency lawyers by Who's Who Legal for 2019. He has also been listed as a "Notable Practitioner" in the 2019 edition of IFLR1000—The Guide to the World's Leading Financial Law Firms.

Dan B. Prieto (Dallas) has been endorsed as a "Leading Lawyer—Rising Star" in the 2019 edition of IFLR1000—The Guide to the World's Leading Financial Law Firms.

Kevyn D. Orr (Washington) participated in a fireside-chat panel titled "Bankruptcy Five Years Later" at the 5th Anniversary of the Detroit Homecoming, a three-day event held September 12–14, 2018, in Detroit.

Juan Ferré (Madrid) has been selected for inclusion in the 11th Edition of Best Lawyers in Spain for his work in the fields of Banking and Finance Law and Insolvency and Reorganization Law. He has also been recognized as a 2019 "Lawyer of the Year" for his work in Insolvency and Reorganization Law in Madrid.

On September 20, 2018, Kevyn D. Orr (Washington) served as a panelist at the Ninth Annual D.C. Legal Market Conference in Washington, D.C. The topics of discussion included: (i) "State of the Market: Growing the Top Line and Bottom Line"; (ii) "Talent—Not Just Recruiting, But Retaining the Best People"; and (iii) "Making Diversity Relevant: New Models of Inclusion."

An article written by Mark A. Cody (Chicago) and Mark G. Douglas (New York) entitled "Fifth Circuit Rules That Corporate Charter Provision Requiring Shareholder Consent for Bankruptcy Filing Is Enforceable but Declines to Rule on Validity of 'Golden Shares'" was posted on the November 6, 2018, Harvard Law School Bankruptcy Roundtable.