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On Jan. 17, 2017, in a closely watched dispute, the Second Circuit issued its long-anticipated decision in <i>Marblegate Asset Management, LLC v. Education Management Finance Corp.</i>, construing Section 316(b) narrowly, holding that it only prohibits "non-consensual amendments to an indenture's core payment terms" and does not protect noteholders' practical ability to receive payment.

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<b><i>Will Reversing a Transaction 'Seriously Upset The Securities Market' Ability to Function'?</b></i><p>On Dec. 1, 2016, Bankruptcy Judge Michael J. Kaplan, held that when a private company repurchases stock from a shareholder, and the payments were made "by" the company "to" the shareholder, through a bank, those payments are not protected by Bankruptcy Code § 546(e)'s safe harbor defense because its application "cannot be permitted to turn upon the use of a bank."

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<i><b>Uncertain Treatment of Make-Whole Premiums Upon Bankruptcy-Induced Acceleration and Redemption of Indentures</b></i><p>Recently, tempted by attractive interest rates, certain borrowers have sought to use the bankruptcy process to shield themselves from their obligations to pay make-whole premiums contemplated by their indenture documents. Although certain courts have allowed crafty borrowers to shed unwanted make-whole obligations through the bankruptcy process, other courts refuse to sanction such manipulation.

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A Chapter 11 debtor "cannot nullify a preexisting obligation in a loan agreement to pay post-default interest solely by proposing a cure," held a split panel of the U.S. Court of Appeals for the Ninth Circuit on Nov. 4, 2016.

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Although Congress has not expressly addressed when and under what circumstances bankruptcy jurisdiction ends, most courts agree that a bankruptcy court's jurisdiction "shrinks" after confirmation of a plan. This article discusses the factors that courts take into consideration in determining the extent of the post-confirmation jurisdictional shrinkage.

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this issue of WARN Act liability giving rise to significant administrative or priority claim risk is unique to bankruptcy.However, assuming that, for other reasons, a bankruptcy case is the best path for your client, what can you do to mitigate the risk?

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"[T]he bankruptcy court did not abuse its discretion in denying [the debtor's former employees'] motion to compel arbitration" when the dispute turned on the relative priority of their claims, held the U.S. Court of Appeals for the Second Circuit on Oct. 6, 2016 in <i>In re Lehman Bros. Holdings.</i>

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Recently, a Florida bankruptcy court permitted a Chapter 7 trustee to reach back 10 years to unwind a fraudulent transfer, a period of time well beyond the two years that practitioners generally expect.