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Secured lenders to U.S. companies should generally expect to defeat competing retention of title claims asserted by foreign vendors, but this should not be taken for granted. The supporting legal framework is open to judicial interpretation and requires a disciplined application of numerous Uniform Commercial Code (UCC) terms. For an outcome that many secured lenders assume without much hesitation, applicable law does little to justify easy confidence.
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The Benefits of Subchapter V — But Are You Guaranteed to Stay?
By Sean C. Kulka
Although Subchapter V may create a clearer path to confirmation, debtors must be aware of, and (absent an extension by the court) comply with, the more stringent timing requirements, such as the requirement of filing a plan within 90 days after filing bankruptcy.
Third Circuit Holds Ethical Screen Insulates Side-Switching Lawyer’s New Firm
By Michael L. Cook
The Third Circuit recently affirmed a bankruptcy court’s denial of a defendant’s motion to disqualify the plaintiff’s law firm in a large adversary proceeding, holding that it had not abused its discretion because the plaintiff law firm had “complied with” ABA Model Rule of Professional Conduct 1.10(a)(2).
Fifth Circuit Weighs In on Scope of Releases and Exculpation
By Francis J. Lawall and Nathaniel T. DeLoatch
In an important recent U.S. Court of Appeals for the Fifth Circuit decision, the court explored whether exculpation provisions protecting more than just the debtor and committee are appropriate.
Are Voting Rights Provisions In Subordination Agreements Enforceable?
By James H. Millar
Subordination agreements often contain an agreement by the subordinated creditor that, if the issuer is a debtor in a bankruptcy case, the senior creditor can vote the claim of the junior creditor on any proposed Chapter 11 plan. If given effect, such a voting provision can give a senior creditor significant power, relative to both the subordinated creditor and other creditors, to support or oppose confirmation of a plan.
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