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The provisions of the Bankruptcy Code sometimes conflict with other federal laws and regulations. A debtor that operates in a highly regulated industry often faces additional hurdles in administering its bankruptcy case that would be routine in other Chapter 11 proceedings. Conversely, a regulated debtor might find the Bankruptcy Code enables it to avoid an otherwise inevitable regulatory consequence. The U.S. Court of Appeals for the Sixth Circuit Court recently considered whether an energy company debtor could reject a power purchase agreement as an executory contract that had been filed with the Federal Energy Regulatory Commission (FERC). Outside of bankruptcy, the debtor’s ability to address the contract would fall under FERC’s exclusive jurisdiction. Here, the bankruptcy court ruled that FERC had no jurisdiction, and the bankruptcy court had exclusive jurisdiction to adjudicate the matter. The Sixth Circuit court rejected that position, and ruled that the bankruptcy court and FERC have concurrent jurisdiction. The opinion was issued on Dec. 12, 2019, in the case of In re FirstEnergy Solutions, Case Nos. 18-3787/3788/4095/4097/4107/4110.
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By Robert W. Dremluk
The general purpose of Subchapter V was to streamline the Chapter 11 bankruptcy process for small businesses and individuals engaged in business to administer their bankruptcy estate in an efficient and less costly manner.
By Michael L. Cook
The bankruptcy trustee of a bank holding company was not entitled to a consolidated corporate tax refund when a bank subsidiary had incurred losses generating the refund, Tenth Circuit held.
By Sheryl P. Giugliano
Bankruptcy professionals should be relieved by a recent decision holding that although nunc pro tunc orders approving a professional’s retention are now considered “inappropriate” in light of the Supreme Court’s decision in Roman Catholic Archdiocese of San Juan, there is nothing in the Bankruptcy Code, Bankruptcy Rules, or applicable case law preventing an award of compensation before a retention order is entered.
By Derek F. Meek and Hanna Lahr
Proper planning is key to ensuring a company’s financial health when facing an economic downturn. Although companies will come into such planning with different levels of financial health, the same considerations can be helpful in determining the best path forward.