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Litigation

  • A Decision of Interest: U.S. Court of Appeals for the Second Circuit Opines on the Proper Interest Rate Under the Cramdown Provisions of Chapter 11

    13 Nov 2017

    On October 20, 2017, the United States Court of Appeals for the Second Circuit issued an important decision regarding the manner in which interest must be calculated to satisfy the cramdown requirements in a chapter 11 case. The Second Circuit sided with Momentive’s senior noteholders and found that “take back” paper issued pursuant to a chapter 11 plan should bear a market rate of interest when the market rate can be ascertained, as opposed to a rate set using the “formula approach” (generally the prime rate plus 1% to 3%). In so holding, the Second Circuit found that the United States Supreme Court’s decision in Till v. SCS Credit Corp. (which determined the rate of interest in the context of a cramdown in an individual debtor chapter 13 case) did not conclusively require the use of a formula approach in a chapter 11 context, and agreed with other courts, including the United States Court of Appeals for the Sixth Circuit, that a market rate should apply in circumstances in which it can be established.

  • (Make) Wholly Moly: U.S. Court of Appeals for the Second Circuit Upholds Ruling Denying Noteholders’ Entitlement to a Make-Whole Payment

    13 Nov 2017

    On October 20, 2017, the United States Court of Appeals for the Second Circuit issued a decision which, among other things, affirmed the lower courts’ holding that certain noteholders were not entitled to payment of a make-whole premium. The Second Circuit held that the make-whole premium only was due in the case of an optional redemption, and not in the case of an acceleration brought about by a bankruptcy filing.

  • We, the Releasees: Delaware Bankruptcy Court Holds That It Had Constitutional Authority to Approve Nonconsensual Third-Party Releases

    1 Nov 2017

    On October 3, 2017, Bankruptcy Judge Laurie Selber Silverstein of the United States Bankruptcy Court for the District of Delaware issued a decision holding that the Bankruptcy Court had constitutional authority to approve third-party releases in a final order confirming a plan of reorganization. 

  • Governance & Securities Law Focus: Asia Edition, October 2017

    Oct 2017

    In this newsletter, we provide a snapshot of the principal Asian, US, European and selected international governance and securities law developments of interest to Asian corporates and financial institutions.

  • Governance & Securities Law Focus: Europe Edition, October 2017

    18 Oct 2017

    In this newsletter, we provide a snapshot of the principal European, US and selected international governance and securities law developments of interest to European corporates.

  • Sanctions Round Up: Third Quarter 2017

    11 Oct 2017

    The third quarter was headlined by the imposition of broad new US legislative sanctions against Russia, Iran, and North Korea.  The Trump Administration also acted unilaterally to significantly expand sanctions against both North Korea and Venezuela, while removing decades-old sanctions against Sudan.  OFAC continued its recent trend of pursuing enforcement actions again non-financial entities.

  • The English High Court Rules in Favour of Air Cargo Defendants Regarding Temporal Scope of Claimants’ Claims

    5 Oct 2017

    On 4 October 2017, the High Court gave a judgment on a preliminary issue significantly restricting the temporal scope of the claimants’ claims in four air cargo cartel damages actions.

  • Agnès Dunogué, Christopher LaVigne and Jeewon Kim Serrato Co-Author Article on Microsoft Corp. v. United States

    Sep 2017

    On July 14, 2016, the United States Court of Appeals for the Second Circuit released its decision in Microsoft Corp. v. United States, rejecting the U.S. government’s efforts to require Microsoft to turn over emails held overseas in its data center in Dublin, Ireland, pursuant to a judicially authorized search warrant. Partners Agnès Dunogué and Christopher LaVigne (both New York-Litigation) and counsel Jeewon Kim Serrato (San Francisco-Privacy & Data Protection) co-authored “Implications of Microsoft’s Win in Overseas Server Email Case” for E-Commerce Law and Policy in which they explain how this decision, while narrow, runs counter to a trend in which courts have generally accepted the U.S. government’s efforts to obtain evidence stored abroad. They also discuss how the case may have meaningful implications for where corporations store their data in the future and on the U.S. government’s ability to use certain investigative techniques to obtain data stored overseas.

  • New York State Cybersecurity Regulations: First milestone in sight, what is next on the horizon?

    22 Aug 2017

    The New York State Department of Financial Services (“NYDFS”) enacted final cybersecurity regulations (“Regulations”) for NYDFS regulated entities that went into effect on March 1, 2017. The first deadline for compliance under the Regulations is August 28, 2017, by which date covered entities are required to, among other things, create a written cybersecurity policy and appoint a Chief Information Security Officer (“CISO”). The Regulations also require an annual certification by the Chairperson of the covered entity’s Board of Directors (or a senior officer) as to the entity’s compliance with the Regulations. As the first such certification is required to be made by February 15, 2018, and the NYDFS has issued updated Frequently Asked Questions (“FAQs”) that provide additional compliance guidance, now is the time to look beyond the first deadline and begin taking action.

  • Governance & Securities Law Focus: Latin America Edition

    Aug 2017

    This newsletter provides a snapshot of the principal US and selected international governance and securities law developments during the second quarter of 2017 that may be of interest to Latin American corporations.

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