Category Archives: Bankruptcy

It cant be overstated: Bethlehem Steel was Bethlehem. And when the industry titan declared bankruptcy 20 years ago this week, it was a death knell. Steelmaking here had already stopped and the company was selling off property to keep itself afloat. Some hoped government intervention and negotiations with labor unions could stave off the inevitable, but it was too late: Steel would close for good two years later.

Here is how The Express-Times reported the Bethlehem Steel bankruptcy on Oct. 16, 2001.

Bethlehem Steel Corp., the giant that put this city on the map, filed for bankruptcy protection Monday.

At 3 a.m., Steels board members voted unanimously to seek Chapter 11 reorganization after hours of meetings in New York City.

By 9 a.m., Bethlehem Steel attorneys filed the documents with the U.S. Bankruptcy Court in Manhattan, listing $4.2 billion in assets and $4.5 billion in debt.

Robert Steve Miller, Steels president and chief executive officer, said the decision comes with enough loans to keep the company afloat while it makes some tough cutbacks.

When I came here, I was reasonably confident we would not need to go there, Miller said of the bankruptcy filing. But since Sept. 11, the economy has gone into a freefall every day, it was clear that the business outlook was more bleak than I thought.

Miller has been at the helm of the company for only 21 days.

The company, which has lost money five quarters in a row, has 13,000 employees and 74,000 pensioners. On Monday, Steel reported a third-quarter loss of $152 million, or $1.25 per share.

In its heyday, Bethlehem steelworkers built landmarks like the Golden Gate Bridge and Rockefeller Plaza. During World War II, it employed 300,000 people as the countrys largest shipbuilder.

The rusting blast furnaces of Bethlehem Steel are barely visible through the fog one January day in 2005, four years after the company declared bankruptcy and two years after the company folded for good.Bill Adams | lehighvalleylive.com file photo

Now, more than 20 U.S. steel companies have sought bankruptcy protection since 1998, when financial crises in Asia and Russia caused foreign producers to flood the U.S. with inexpensive steel.

Miller, a turnaround specialist who made his name with the 1980s Chrysler bailout, joined the company Sept. 24, replacing Duane Dunham.

The company has announced plans to sell its South Buffalo Railway business in Lackawanna, N.Y., a 70 percent interest in an iron-ore mine in Minnesota and a 5 percent stake in a mine in Brazil. It also plans to eliminate 340 jobs by closing a coal-processing plant in New York to reduce expenses.

This fall, Steel was struggling to line up $750 million in loans. This weekend, the troubled company lined up $450 million in loans from GE Capital as a debtor in possession.

The $750 million was like a refinancing of your home mortgage, while the $450 is more in the form of a second mortgage, Miller said in a noon teleconference.

He said Steels recovery rides on three legs labor, government, and merger or acquisition.

[United Steelworkers of America] President Leo Gerard said 130,000 retired workers and dependents are put at risk by the Bethlehem filing.

It doesnt take a rocket scientist to figure out that if Washington [D.C.] doesnt take action now, an industry crucial to Americas security will be bled to death, Gerard said in a statement.

Local union and pension officials said Monday they had not received word about changes facing 11,000 Lehigh Valley steelworker retirees.

The fallout from Steels bankruptcy filing isnt limited to Steel. Lehigh Heavy Forge laid off an undisclosed number of employees effective noon Monday, [Jerry Green, president of the tri-local union] said.

Bethlehem Steel provides the raw materials for the South Bethlehem company and is a major buyer for its products.

People who heard the news about Bethlehem Steel used one word sad.

Bruce Davis, attorney for the Bethlehem Steel Retired Employees Benefits Coalition, said This is about as sad a day as I can remember for a very proud company.

Author and former Globe-Times editor John Strohmeyer said he got an early morning phone call from his daughter.

Hes now [at the time of original publication] author in residence at the University of Alaska in Anchorage.

My first reaction was, I could see it coming, but I never thought it would really happen, Strohmeyer said.

Strohmeyer, a Pulitzer Prize-winner, authored Crisis in Bethlehem, a book that traces Steel in the mid-20th century.

The theme? Steel was relying too heavily on government to bail it out, the author said. It was time for management and labor to tango. If they were going to rescue it, it had to be a joint rescue operation. I dont think it ever occurred.

Then, he added, Its sad. Its very sad.

Diana DeMuth opens for Phillip Phillips at Musikfest 2021. Bethlehem Steel is no more, but relics like the blast furnaces now provide a dramatic backdrop for a vibrant arts and cultural center.Saed Hindash | For lehighvalleylive.com

10 YEARS AGO | Oct. 10, 2011: The 110-year-old Blue Fox Hotel burns down in Whitehall Township, killing one person and displacing nine others, some of whom reportedly jumped from second- and third-story windows.

50 YEARS AGO | Oct. 14, 1971: Early returns on an Easton Express reader poll show readers 2-to-1 against the Tocks Island Dam project. The controversial project seeks to dam the Delaware River just north of the Delaware Water Gap, and the Express pledges to send final results of its poll to a presidential council set to decide on the project by Nov. 4.

This story is part of Lehigh Valley Then, a weekly series that recalls historical headlines from lehighvalleylive.com affiliate The Express-Times and its predecessors from 10, 20, 25, 50 and 100 years ago. Stories are pulled from microfilm at the Easton and Bethlehem area public libraries. Excerpts from the original text are edited for clarity and length.

Our journalism needs your support. Please subscribe today to lehighvalleylive.com.

Steve Novak may be reached at snovak@lehighvalleylive.com.

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The day Bethlehem Steel went bankrupt: I never thought it would really happen - lehighvalleylive.com

Monday, 11 October 2021, 9:59 amPress Release: Debtfix

During 2021, Debtfix co-founderChristine Liggins has been on a mission to bring aboutchanges to bankruptcy and the Insolvency Act inAotearoa.

The number of New Zealanders applying forbankruptcy is slowly decreasing but in the 2020-21 yearthere were 784 adjudications.

Thats a lot ofindividuals, families, partners and creditors who arefinancially and emotionally affected bybankruptcy.

Liggins wants the following actions madeto improve the outcomes for people with debt problems andthe organisations they owe money to.

Currently, there are about1600 bankruptcies that are still active, well beyond thethree-year term. These need to be resolved and removed sopeople can move on with their lives.

Applying for bankruptcy is a legal optionfor managing problem debt, within the Insolvency Act.Therefore, the process should not be dealt with in the HighCourt, as if the person is a criminal. Bankruptcy is notfraud.

Currently, an application forbankruptcy is administrated, not reviewed. An applicant cango online in a moment of desperation, apply for bankruptcy,and find themselves locked into the system without anyreview process. They may not know the impact bankruptcy willhave on their life, nor alternatives that may be better forthem and those they owe money to.

Currently, a person can be madebankrupt by a creditor for as little as $1000. Bankruptcy issuch a serious action that the amount should besignificantly higher. There are cases when angry familymembers, ex-partners and businesses use bankruptcy as an actof vengeance.

Paperwork, not signing on the dottedline and avoiding the problem hoping it will go away, canall lead to people enduring bankruptcy proceedings for manyyears. New Zealanders need better systems to ensure that thebankruptcy starts on time and is not delayed for months, oreven years due to a lack of Statement ofAffairs.

Bankruptcy usually lasts forthree years from the date that you supplied a completedStatement of Affairs, unless an objection to your dischargehas been lodged in which case you will be informedseparately. New ZealandInsolvency and Trustee Service

Debtfix wants societyto change the stigma attached with bankruptcy.

Peoplemake mistakes, have relationship breakdowns, unexpectedhealth problems or suddenly lose their job through no faultof their own, and they can find themselves unable to meettheir debt obligations.

When bankruptcy is the onlyoption, it is not the same as fraud and it is not a criminalact.

Fraudulent people should be dealt with within thecriminal system and people who need to use bankruptcy shouldbe supported to resolve their debt, learn, and moveon.

Scoop Media

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Five Things That Must Change With Bankruptcy Law In Aotearoa - Scoop.co.nz

BRADENTON DeSoto Square Mall in Bradenton is set to be sold through a bankruptcy auction starting Oct. 11.

A bankruptcy judge in New York approved the sale Sept. 20 after a request by the lender, Rompsen US Master Mortgage, which had foreclosed on the property. The judges decision allows for bidders to make offers on the property for two days.

The judge will hold a hearing Oct. 20 to consider approving the sale.

DeSoto Square, which opened in 1973 and sits on 57.86 acres in Bradenton, closed in April after years of decline. Not long before that, its current owner, DeSoto Owners LLC, had filed for bankruptcy in an effort to buy time and restructure its finances.

In its initial bankruptcy filing, the owner claims the mall was at 40% occupancy at the time.

According to court papers, DeSoto Owners bought the mall, once a leading shopping destination in Manatee County, March 17, 2017 for $25.5 million with Rompsen providing the mortgage. Payments continued steadily for about the first year but the mall never generated the income projected, documents show.

In eventually went into default and on Jan. 20, 2020 a judgement of foreclosure in the amount of $29.3 million was issued.

A foreclosure salewas scheduled for Sept. 23, 2020. DeSoto Owner filed for bankruptcy the day before the sale.

At the time of the filing, DeSoto officials saidit did not believe it could restructure itself with the property continuing as a mall and said in court papers it wanted to redevelop the entire site into a mixed-use development.

For sale are the 57.86-acre property and 569,675-square-foot mall, which includes Hudsons Furniture and Firestone Complete Auto Care, according to an online listing for the property.

According to the listing, there are plans for the redevelopment in place that would call for a 128,000-square-foot retail lifestyle center, 30,000-square-foot grocery store and two apartment communities totaling 705 units.

See the original post:

Shuttered mall heading to bankruptcy auction - Business Observer

What GAO Found

Chapter 11 bankruptcy allows a company (debtor) to restructure its debtso that it may continue to operateand generally retain its executives. Section 503(c) of the Bankruptcy Code (Code) restricts retention bonuses for executives and, to a lesser extent, executive and non-executive incentive bonuses during bankruptcy. For instance, to pay an executive a retention bonus, the Code requires the debtor to meet three requirements, including that the executive has another job offer at the same or greater compensation. Also, debtors must obtain court approval to pay employee bonuses during bankruptcya process that gives creditors an opportunity to raise objections. However, the Code generally does not govern executive retention bonuses paid before a bankruptcy filing (pre-bankruptcy bonuses).

Academics and attorneys GAO interviewed largely viewed Section 503(c) as less-than-effective because debtors can work around its restrictions on executive retention bonuses both before and during bankruptcy. For example, debtors can pay retention bonuses before filing (when there are generally no restrictions), or they can pay incentive bonuses during bankruptcy (that have fewer restrictions). Some stakeholders viewed Section 503(c) as overly restrictive, but others viewed it as helping to prevent abusive bonuses. Nearly all stakeholders GAO interviewed viewed pre-bankruptcy bonuses as problematic. For example, they said that these bonuses reduce the debtor estate's value for creditors but are awarded without notice to creditors or court approval.

Based on court dockets for the approximately 7,300 companies that filed for Chapter 11 bankruptcy in fiscal year 2020, GAO found the following:

According to some attorneys GAO interviewed, Section 503(c) makes it nearly impossible to award executives retention bonuses during bankruptcy, so debtors use pre-bankruptcy bonuses as a workaround. As noted above, GAO found that none of the 7,300 Chapter 11 debtors that filed in fiscal year 2020 requested executive retention bonuses during bankruptcy but 42 awarded such bonuses shortly before filing. This practice may undermine Section 503(c)'s restrictions and decrease the ability of creditors, U.S. Trustees, and the courts to prevent bonuses that are inconsistent with the section's requirements.

In response to potential abuses involving executive bonuses, Congress amended the Code in 2005 to restrict debtors in Chapter 11 from paying executives retention bonuses for staying through bankruptcy and, to a lesser extent, incentive bonuses to achieve performance targets. Recently, some large companies have paid their executives considerable bonuses during bankruptcy. House Report 116-455 included a provision for GAO to review Code provisions on bonuses and a selected number and amount of court-requested and approved bonuses in fiscal year 2020.

This report reviews (1) Bankruptcy Code provisions on employee bonuses, (2) selected stakeholder views on such provisions, and (3) employee bonuses awarded by companies before or after filing for bankruptcy in fiscal year 2020. GAO reviewed the Code, academic literature, and legal analyses; interviewed 12 academics, attorneys, and an organization selected for their bankruptcy expertise; and analyzed bankruptcy filings and related data using Westlaw Edge and other sources.

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Bankruptcy: Enhanced Authority Could Strengthen Oversight of Executive Bonuses Awarded Before a Bankruptcy Filing - Government Accountability Office

The 2021 water year ends on September30, and it was another hot, dry year in the western US, with almost the entire region in drought. Reservoirs vital for farms, communities and hydropower have fallen to dangerous lows.

The biggest blow came in August, when the USgovernment issued its first ever water shortage declaration for the Colorado River, triggering water use restrictions.

In response, farmers and cities across the Southwest are now finding new, often unsustainable ways to meet their future water needs. Las Vegas opened a lower-elevation tunnel to Lake Mead, a Colorado River reservoir where water levels reached unprecedented lows at 35% of capacity. Farmers are ratcheting up groundwater pumping. Officials in Arizona, which will lose nearly one-fifth of its river water allotment under the new restrictions, even floated the idea of piping water hundreds of miles from the Mississippi River.

These strategies conceal a more fundamental problem: the unchecked growth of water consumption. The Southwest is in an anthropogenic drought created by the combination of natural water variability, climate change and human activities that continuously widen the water supply-demand gap.

In the long run, this can lead to water bankruptcy, meaning water demand invariably exceeds the supply. Trying to manage this by cranking up water supply is destined to fail.

More than 7,000 miles away, Iran is grappling with water problems that are similar to the USSouthwests but more severe. One of the driest years in the past five decades, on the back of several decades of mismanaged water resources, brought warnings of water conflicts between Iranian provinces this year.

As environmental engineers and scientists one of us is also a former deputy head of Irans Department of Environment weve closely studied the water challenges in both drought-prone regions. We believe past mistakes in the USand Iran offer important lessons for future plans in the USSouthwest and other regions increasingly experiencing drought and water shortages.

As the supply of water from the Colorado River diminishes, Southwest farmers are putting more straws into already declining groundwater that accumulated over thousands to millions of years. But that is a short-term, unsustainable solution that has been tried across the USand around the globe with major consequences. The High Plains Aquifer and Californias Central Valley are just two examples.

Iran offers a case study in what can go wrong with that approach, as our research shows. The country nearly doubled its groundwater extraction points between 2002 and 2015 in an attempt to support a growing agricultural industry, which drained aquifers to depletion. As its water tables drastically declined, the groundwaters salinity increased in aquifers to levels that may no longer be readily suitable for agriculture.

As water-filled pores in the soil are drained, the weight of the overlying ground compresses them, causing the aquifers to lose their water holding capacity and accelerating land subsidence. Irans capital, Tehran, with more than 13mn residents, subsided more than 12 feet (3.7m) between 2003 and 2017. Similarly, some areas of California are sinking at a rate of up to 1 foot (0.3m) each year.

Another proposal in the Southwest has been to pipe in water from elsewhere. In May, the Arizona legislature urged Congress to initiate a feasibility study to bring Mississippi River water to replenish the Colorado River. But that, too, has been tried.

In Iran, multiple interbasin water transfer projects doubled the flow of the Zayandeh Rud, a river in the arid central part of the country. The inflow of water supported unsustainable growth, creating demand without enough water to support it. In dry years now, no one has enough water. Many people in Khuzestan the region supplying water to central Iran lost their livelihood as their farms dried out, wetlands vanished, and livestock died of thirst. People in central Iran also lost crops to the drought as incoming water was cut. Both regions saw protests turn violent this year.

California diverted water from the Eastern Sierra Nevada to support Los Angeles growth in the early 1900s, turning the once prosperous Owens Lake Valley into a dust bowl. Costs of mitigating dust storms there now exceed $2bn. Meanwhile, California needs more infrastructure and investment to meet its water demand.

Another project, the California Aqueduct, was constructed in the 1960s to transfer water from the Sacramento-San Joaquin Delta in Northern California to the Central Valley and southern parts of the state to support agriculture and some urban demand. This also did not close the water demand-supply gap, and it pushed economically and culturally important native fish species and ecological systems in the delta to the point of collapse.

As the continued influx of population into the USSouthwest raises water demand in the face of shrinking water supply, we have to wonder whether the Southwest is heading toward water bankruptcy.

While there is no easy solution, a number of actions are possible.

First, recognise that water shortages cannot be mitigated only by increasing water supply its also important to manage water demand.

There is great potential for water savings through efficient irrigation and precision agriculture systems, which could keep agriculture viable in the region.

Cities can save water by curbing outdoor water losses and excess water use, such as on ornamental lawns. Californians successfully reduced their water demand by more than 20% between 2015 and 2017 in response to severe drought conditions. Replanting urban landscapes with native drought-tolerant vegetation can help conserve water.

On the supply side, communities can consider nontraditional water sources, water recycling and reuse in all sectors of the economy, and routing runoff and floodwaters to recharge groundwater aquifers.

There are also emerging technological solutions that could boost water resources in some regions, including fog water collection, which uses sheets of mesh to capture moisture from fog, and desalination plants that turn seawater and saline groundwater into drinking water. One new desalination plant planned for Huntington Beach, California, is awaiting final approval. Environmental consequences of these measures, however, should be carefully considered.

The Southwest monsoon returned this summer after a record dry previous year and a half in the region, but it wasnt enough to end the drought there. Forecasts now suggest a high chance that a La Nina pattern will develop over the winter, meaning Southwest is likely in for another drier-than-normal start to 2022.

Iran is already in water bankruptcy, with demand exceeding supply. It will take a lot more than a wet year to alleviate its water shortages.

Mojtaba Sadegh, Assistant Professor of Civil Engineering, Boise State University; Ali Mirchi, Assistant Professor of Water Resources Engineering, Oklahoma State University; Amir AghaKouchak, Professor of Civil & Environmental Engineering, University of California, Irvine, and Kaveh Madani, Visiting Fellow, Yale University

This article is republished from The Conversation under a Creative Commons licence. Read the original article.

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Avoiding water bankruptcy in the drought-troubled Southwest: What the US and Iran can learn from each other - bne IntelliNews

The countys former ambulance service company will declare bankruptcy unless the Citrus County Commission allows it to keep some revenues after the Citrus County Fire Rescue takes over the service Oct. 2.

The county commission voted 3-2 earlier this month to end its contract with the private ambulance company and take over the service after Nature Coast EMS kept returning for additional financial help to keep it operating and give staff sorely needed raises.

Nature Coast EMS lawyer Jennifer Rey told the commission Tuesday that the Nature Coast board has been cooperative with county officials about the takeover but when the county takes over the service, Nature Coasts revenues will stop. Ray told commissioners that Nature Coast will still have some expenses, namely claims remaining of a year-long contract for health insurance for company employees, and without revenues, plans to file for bankruptcy after the transfer.

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Nature Coast is not in a position to fund those remaining costs, she said.

But there seems little interest among county commissioners to bail out Nature Coast after the transition.

Filing for bankruptcy is solely their decision, said Commissioner Jeff Kinnard of Nature Coast.

The contract with Nature Coast allows the county to take over the service and collect the revenue, he told the Chronicle. Any monies due Nature Coast will have to be sorted out by county staff and brought back to the commission for approval, he said.

The announcement of a bankruptcy doesnt affect my plan for the direction were going, he said.

Commissioner Holly Davis told the Chronicle she didnt see at this point why the commission might have any interest in sharing revenue with Nature Coast after the transfer.

My number one priority is the Citrus County residents, Davis said.

County Attorney Denise Dymond Lyn told the Chronicle she has not yet determined if the bankruptcy would affect the county or transfer.

As part of the original plan to fold the emergency transport business into the countys fire rescue department, the county board agreed to pay Nature Coast enough money to cover its operating expenses for the rest of September.

Most of Nature Coasts employees will transfer to the county fire rescue department. Nature Coast EMS Chief Scott Baxter previously told the commission that about half a dozen Nature Coast employees will remain with the company to help oversee the transition and wind down the private, non-profit company.

Rey said that without county commission help Nature Coasts board will file for bankruptcy after the transition, but will continue to help with the transition work.

Read more here:

Nature Coast EMS to face possible bankruptcy following handover of services to county - Citrus County Chronicle

U.S. courts have a long-standing tradition of recognizing orenforcing the laws and court rulings of other nations as anexercise of international "comity." It has been generallyunderstood that recognition of a foreign bankruptcy proceedingunder chapter 15 is a prerequisite to a U.S. court enforcing, underthe doctrine of comity, an order or judgment entered in a foreignbankruptcy proceeding or a provision in foreign bankruptcy lawapplicable to a debtor in such a proceeding.

A ruling recently handed down by the U.S. District Court for theSouthern District of New York directly challenges this principle,which has existed since chapter 15 was enacted in 2005. InMoyal v. Munsterland Gruppe GmbH & Co., 2021 WL1963899 (S.D.N.Y. May 17, 2021), the court dismissed litigationagainst a German company, finding that, under principles of comity,the lawsuit was stayed by operation of German law when the companyfiled for bankruptcy in Germany. The district court did so despitethe absence of any order issued by a U.S. bankruptcy courtrecognizing the German bankruptcy proceeding under chapter 15.

"Comity" is "the recognition which one nationallows within its territory to the legislative, executive orjudicial acts of another nation, having due regard both tointernational duty and convenience, and to the rights of its owncitizens or of other persons who are under the protection of itslaws." Hilton v. Guyot, 159 U.S. 113, 164 (1895).International comity has been interpreted to include two distinctdoctrines: (i) "legislative," or"prescriptive," comity; and (ii) "adjudicativecomity." Maxwell Comm'n Corp. v. SocitGnrale (In re Maxwell Comm'n Corp.), 93F.3d 1036, 1047 (2d Cir. 1996).

The former "shorten[s] the reach of a statute"-onenation will normally "refrain from prescribing laws thatgovern activities connected with another state when the exercise ofsuch jurisdiction is unreasonable." Official Comm. ofUnsecured Creditors of Arcapita Bank B.S.C.(C) v. Bahrain IslamicBank (In re Arcapita Bank B.S.C.(C)), 575 B.R. 229, 237(Bankr. S.D.N.Y. 2017).

"Adjudicative comity," or "comity amongcourts," is an act of deference whereby the court of onenation declines to exercise jurisdiction in a case that is properlyadjudicated in a foreign court. Because a foreign nation'sinterest in the equitable and orderly distribution of a foreigndebtor's assets is an interest deserving respect and deference,U.S. courts generally defer to foreign bankruptcy proceedings anddecline to adjudicate creditor claims that are the subject of suchproceedings. See Canada Southern Railway Co. v. Gebhard,109 U.S. 527, 548 (1883) ("the true spirit of internationalcomity requires that [foreign schemes of arrangement], legalized athome, should be recognized in other countries"); accord Inre Int'l Banking Corp. B.S.C., 439 B.R. 614, 624 (Bankr.S.D.N.Y. 2010) (citing cases).

Prior to 2005, as an exercise of comity, U.S. courts regularlyenforced stays of creditor collection efforts against a foreigndebtor or its U.S. assets issued in connection with foreignbankruptcy proceedings. See, e.g., Philadelphia Gear Corp. v.Philadelphia Gear de Mexico, S.A., 44 F.3d 187 (3d Cir. 1994)(deferring to Mexican bankruptcy proceeding); Badalament, Inc.v. Mel-O-Ripe Banana Brands, Ltd., 265 B.R. 732 (E.D. Mich.2001) (deferring to Canadian bankruptcy proceeding); LindnerFund, Inc. v. Polly Peck Int'l PLC, 143 B.R. 807 (S.D.N.Y.1992) (citing cases and dismissing litigation brought in U.S.against UK company that was debtor in UK insolvency proceedings);Cornfeld v. Investors Overseas Services, Ltd., 471 F.Supp. 1255 (S.D.N.Y. 1979) (deferring to Canadian bankruptcyproceeding), aff'd, 614 F.2d 1286 (2d Cir. 1979).

In many such cases, U.S. courts recognized and enforced thestays of foreign courts in granting relief in an "ancillaryproceeding" brought by the representative of a foreign debtorunder section 304 of the Bankruptcy Code-the repealed precursor tochapter 15 of the Bankruptcy Code. Section 304 expressly authorizeda U.S. bankruptcy court to enjoin the commencement or continuationof any action against a foreign debtor with respect to propertyinvolved in a foreign bankruptcy case. See, e.g., JP MorganChase Bank v. Altos Hornos de Mexico S.A. de C.V., 412 F.3d418 (2d Cir. 2005); Cunard S.S. Co. v. Salen Reefer Servs.AB, 773 F.2d 452 (2d Cir. 1985); Hoffman v. Joint OfficialLiquidators (In re Nat'l Warranty Ins. Risk RetentionGrp.), 306 B.R. 614 (B.A.P. 8th Cir.), aff'd, 384F.3d 959 (8th Cir. 2004).

However, an ancillary proceeding under section 304 was "notthe exclusive remedy for foreign debtors opposing actions by localcreditors against assets located in the United States."Hembach v. Quikpak Corp., 1998 WL 54737, *4 (E.D. Pa. Jan.8, 1998). The foreign representative could request that the U.S.court recognize foreign bankruptcy proceedings as a matter ofinternational comity, without seeking relief under section 304.See Interpool, Limited v. Certain Freights of the M/VS VentureStar, Mosman Star, Fjord Star, Lakes Star, Lily Star, 878 F.2d111 (3d Cir. 1989); Remington Rand Corporation-Delaware v.Business Sys. Inc., 830 F.2d 1260, 1267-68 (3d Cir. 1987)(section 304 "expresse[d] Congressional recognition of anAmerican policy favoring comity for foreign bankruptcy proceedings... [and was] not the exclusive source of comity"); In reEnercons Virginia, Inc., 812 F.2d 1469, 1471-72 (4th Cir.1987); see generally Collier on Bankruptcy("Collier") 1509.02 (16th ed. 2021) ("Thus,foreign representatives could, theoretically at least, try theirluck in a variety of courts, with failure in one not precluding asecond try in another.").

Prior to the enactment of chapter 15, many courts examinedwhether a foreign proceeding was "procedurally fair" anddid not violate U.S. law or public policy in assessing whether aU.S. court should defer to the proceeding under principles ofcomity. See, e.g., JP Morgan Chase Bank v. AltosHornos de Mexico, S.A. de C.V., 412 F.3d 418, 428 (2d Cir.2005); In re Artimm, S.r.L., 335 B.R. 149, 161 (Bankr.C.D. Cal. 2005).

The enactment of chapter 15 in 2005 changed the requirements forseeking recognition and enforcement in the United States of foreignbankruptcy court orders or laws impacting a foreign debtor or itsU.S. assets.

Under section 1515 of the Bankruptcy Code, a "foreignrepresentative" may file a petition in a U.S. bankruptcy courtseeking "recognition" of a "foreignproceeding." A "foreign representative" is definedin section 101(24) of the Bankruptcy Code as:

[A] person or body, including aperson or body appointed on an interim basis, authorized in aforeign proceeding to administer the reorganization or theliquidation of the debtor's assets or affairs or to act as arepresentative of such foreign proceeding.

A "foreign proceeding" is defined in section 101(23)of the Bankruptcy Code as:

[A] collective judicial oradministrative proceeding in a foreign country, including aninterim proceeding, under a law relating to insolvency oradjustment of debt in which proceeding the assets and affairs ofthe debtor are subject to control or supervision by a foreigncourt, for the purpose of reorganization or liquidation.

More than one bankruptcy or insolvency proceeding may be pendingwith respect to the same foreign debtor in different countries.Chapter 15 therefore contemplates recognition in the United Statesof both a "foreign main proceeding"-a case pending in thecountry where the debtor's center of main interests("COMI") is located (see 11 U.S.C. 1502(4))-and "foreign nonmain proceedings" pending incountries where the debtor merely has an "establishment"(see 11 U.S.C. 1502(5)).

Upon recognition of a foreign main proceeding, section 1520(a)provides that certain provisions of the Bankruptcy Codeautomatically come into force, including section 362, which imposesan automatic stay preventing creditor collection efforts withrespect to the debtor or its U.S. assets. If the bankruptcy courtrecognizes a foreign proceeding as either a main or nonmainproceeding, section 1521(a) authorizes the court to grant a broadrange of provisional and other relief designed to preserve theforeign debtor's assets or otherwise provide assistance to thecourt or other entity presiding over the debtor's foreignproceeding.

Section 1509(b) provides that, if a U.S. bankruptcy courtrecognizes a foreign proceeding, the foreign representative mayapply directly to another U.S. court for appropriate relief, and aU.S. court "shall grant comity or cooperation to the foreignrepresentative." Section 1509(c) accordingly specifies that aforeign representative's request for comity or cooperation fromanother U.S. court "shall be accompanied by a certified copyof an order granting recognition" under chapter 15.

If a U.S. bankruptcy court denies a petition for recognition ofa foreign proceeding, section 1509(d) authorizes the court to"issue any appropriate order necessary to prevent the foreignrepresentative from obtaining comity or cooperation" fromother U.S. courts. However, a foreign representative's failureto commence a chapter 15 case or to obtain recognition does notprevent the foreign representative from suing in a U.S. court"to collect or recover a claim which is the property of thedebtor." 11 U.S.C. 1509(f). Indeed, section 1509's"requirement of prior permission by way of recognition by abankruptcy court deals only with acts by a foreign representativewho needs the assistance of a court in the United States. Nothingin the statute requires prior judicial permission for acts that donot implicate matters of comity or cooperation by courts."In re Iida, 377 B.R. 243, 258 (B.A.P. 9th Cir. 2007).

These provisions reflects lawmakers' intention that chapter15 be the "exclusive door to ancillary assistance to foreign[restructuring or insolvency] proceedings," with the goal ofcontrolling such cases in a single court. Collier at 1509.03(quoting H.R. Rep. No. 109-31(I), 110 (2005) ("Parties wouldbe free to avoid the requirements of [chapter 15] and the expertscrutiny of the bankruptcy court by applying directly to a state orFederal court unfamiliar with the statutory requirements.... Thissection concentrates the recognition and deference process in oneUnited States court, ensures against abuse, and empowers a courtthat will be fully informed of the current status of all foreignproceedings involving the debtor.").

Therefore, unlike practice before the enactment of chapter 15,the vast majority of courts have held that a foreign representativemust comply with the requirements of chapter 15 to obtain thevarious forms of relief or assistance contemplated by the chapter,including a stay or dismissal of U.S. court proceedings against aforeign debtor or its assets. See Halo Creative Design Ltd. v.Comptoir Des Indes Inc., 2018 WL 4742066 (N.D. Ill. Oct. 2,2018); Oak Point Partners, Inc. v. Lessing, 2013 WL1703382 (N.D. Cal. Apr. 19, 2013); Orchard Enter. NY, Inc. v.Megabop Records Ltd., 2011 WL 832881 (S.D.N.Y. Mar. 4, 2011);Econ. Premier Assurance Co. v. CPI Plastics Grp., Ltd.,2010 WL 11561369 (W.D. Ark. June 7, 2010); Reserve Int'lLiquidity Fund, Ltd. v. Caxton Int'l Ltd., 2010 WL 1779282(S.D.N.Y. Apr. 29, 2010); Andrus v. Digital Fairway Corp.,2009 WL 1849981 (N.D. Tex. June 26, 2009); U.S. v. J.A. JonesConst. Grp., LLC, 333 B.R. 637 (E.D.N.Y. 2005); Iida v.Kitahara (In re Iida), 377 B.R. 243 (B.A.P. 9th Cir. 2007);In re Loy, 380 B.R. 154 (Bankr. E.D. Va. 2007).

However, a handful of U.S. courts have determined that chapter15 recognition is not necessary to enforce foreign bankruptcy orinsolvency court orders. For example, in In EMA Garp Fund v.Banro Corp., 2019 WL 773988 (S.D.N.Y. Feb. 21, 2019), thecourt dismissed litigation against a Canadian company and itsformer CEO, finding that, under principles of comity, the lawsuitwas barred by Canadian court orders approving the company'sCanadian bankruptcy proceeding and releasing all claims against thedefendants. The district court did so despite the absence of anyorder issued by a U.S. bankruptcy court recognizing the Canadianbankruptcy proceeding under chapter 15.

Notably, the district court wrote that "the fact thatDefendants did not file a recognition proceeding in [a] U.S.court" was "irrelevant" to its comity determination.2019 WL 773988, at *5 (citing Allstate Life Ins. Co. v. LingerGroup Ltd., 994 F.2d 996, 999 (2d Cir. 1993); Victrix S.S.Co., S.A. v. Salen Dry Cargo A.B., 825 F.2d 709, 714 (2d Cir.1987)). According to the district court, the defendants "wereunder no obligation to file anything in U.S. courts in order toearn [comity] for the Canadian courts." Id. (citingHilton, 159 U.S. at 164); see also OuiFinancing v. Dellar, 2013 WL 5568732 (S.D.N.Y. Oct. 9, 2013)(enforcing as a matter of comity a stay entered in a Frenchsafeguard proceeding with no mention of chapter 15); Bickertonv. Bozel S.A. (In re Bozel S.A.), 434 B.R. 86 (Bankr. S.D.N.Y.2010) (without mentioning section 1509(b), allowing a liquidatorappointed in the British Virgin Islands ("BVI")liquidation proceedings of a BVI company to seek relief in thechapter 11 case of its subsidiary).

As noted, if there is no foreign representative seeking theassistance of a U.S. court in enforcing an order entered in anon-U.S. bankruptcy proceeding, chapter 15 recognition is notnecessary. See generally Collier at 1509.02 (notingthat "courts regularly rule that chapter 15 recognition is nota prerequisite to grant comity to foreign proceedings on therequest of a party other than a foreign representative"). Forexample, in Trikona Advisers Ltd. v. Chugh, 846 F.3d 22(2d Cir. 2017), the U.S. Court of Appeals for the Second Circuitaffirmed a district court ruling giving collateral estoppel effectto the findings of a foreign insolvency court, even though nochapter 15 petition had been filed in the United States on behalfof the foreign debtor seeking recognition of its Cayman Islandswinding-up proceeding. According to the Second Circuit, because theparty seeking such relief was not a "foreignrepresentative" under chapter 15, the provisions of chapter 15simply did not apply, but the district court nonetheless did noterr in granting comity to the foreign insolvency court'sfactual findings. Accord Barclays Bank PLC v.Kemsley, 44 Misc. 3d 773 (N.Y. Sup. 2014) (chapter 15recognition was not necessary to enforce, at the request of anindividual debtor, a discharge order in a UK bankruptcy proceeding,even though a U.S. bankruptcy court previously denied the UKbankruptcy trustee's petition for chapter 15 recognition of thebankruptcy, because chapter 15's plain language applies only toa "foreign representative" such as a trustee).

In February 2019, David Moyal ("Moyal") suedMnster, Germany-based Mnsterland Gruppe GmBH & Co.KG ("MGKG") in N.Y. state court for breach of adistribution agreement. After the litigation was removed to federaldistrict court, MGKG agreed to the entry of a default judgmentbecause it lacked the resources to defend the U.S. action as wellas anticipated litigation to enforce the judgment in Germany.However, MGKG reserved the right to contest the amount of thedamages.

In March 2021, MGKG and its general partner filed a bankruptcyproceeding in a German court, which appointed an insolvencyadministrator for the debtors. The filing triggered an automaticstay of all litigation against MGKG under German law.

MGKG then filed a motion to dismiss or stay the U.S. districtcourt litigation due to the pending German bankruptcy proceeding.Moyal opposed the motion, arguing that, among other things: (i)MGKG's attorney lacked the authority to file the motion becausehe was stripped of any such authority upon the company'sbankruptcy filing; (ii) MGKG's insolvency administrator shouldhave filed a chapter 15 petition for the purpose of seekinginjunctive relief on the company's behalf; and (iii) Moyal didnot receive "formal notice" of the Germany bankruptcyproceeding.

The district court dismissed the litigation based uponprinciples of comity. In so ruling, Magistrate Judge Stewart D.Aaron applied the "procedural fairness" analysis commonlyused by U.S. courts prior to the enactment of chapter 15 in 2005.For support, he cited several pre-chapter 15 decisions addressingcomity.

Judge Aaron found that German insolvency laws "comport withdue process and fairly treat claims of [U.S.] creditors"(quoting Victrix, 825 F.2d at 714) because: (i) the Germancourt shared the U.S. policy of equal distribution of assets; (ii)German law mandated the issuance of a stay; and (iii) German law"makes no distinction between, and gives no preference to,claims by foreign or German creditors based on theirnationality." In addition, Judge Aaron rejected Moyal'sarguments that he received inadequate notice of the Germanbankruptcy proceeding and that MGKG's counsel lacked theauthority to file the motion. According to the judge, the factsbelied Moyal's inadequate notice claim, and MGKG's attorneywas still counsel of record at the time he filed the motion.

Notably, in a footnote, Judge Aaron wrote that"[Moyal's] suggestion that the insolvency [administrator]should have commenced a proceeding in U.S. bankruptcy court underChapter 15 of the Bankruptcy Code to seek a stay of this action inthe District Court is absurd and would fly in the face of comityprinciples." Moyal, 2021 WL 1963899, at *3 n.1(citing Collier at 1509.02 ("[C]ourts regularly rulethat chapter 15 recognition is not a prerequisite to grant comityto foreign proceedings on the request of a party other than aforeign representative.").

The district court's ruling in Moyal cuts againstthe grain on the question of whether chapter 15 recognition is aprerequisite for relief from U.S. courts on the basis of comity incases involving a foreign bankruptcy proceeding. As noted, the vastmajority of courts considering the question have ruled to thecontrary in keeping with the plain language and purpose of chapter15.

Interestingly, the cases relied upon by the district court inMoyal in concluding that chapter 15 recognition wasunnecessary were decided prior to the enactment of chapter 15. Bycontrast, the court does not discuss any of the plethora ofpost-enactment court rulings requiring chapter 15 recognition as aprerequisite to comity. Instead, Judge Aaron reasoned thatrecognition was unnecessary because no "foreignrepresentative" was seeking relief in connection with aforeign bankruptcy case.

The problem with this rationale is that MGKG was a debtor in aforeign bankruptcy proceeding and the relief sought-dismissal or aninjunction-was in furtherance of German law and the Germanbankruptcy. Like its attorney, who the court permitted to withdrawas counsel because he lost the authority to represent the companyas of the date it filed for bankruptcy, MGKG lacked the authorityto continue prosecuting the U.S. litigation notwithstanding thefact that MGKG filed the motion to dismiss or stay after the Germanproceeding was commenced. The German court vested sole authority torepresent MGKG in the insolvency administrator after MGKG'sbankruptcy filing. Accordingly, any relief as a form of assistanceto the German bankruptcy proceeding should have been sought by theinsolvency administrator, who was MGKG's "foreignrepresentative" within the meaning of section 101(24) of theBankruptcy Code and the only person with authority to represent thedebtor in the United States.

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NY District Court Rules That Chapter 15 Recognition Not Required To Enforce Foreign Bankruptcy Injunction - Insolvency/Bankruptcy/Re-structuring -...

Armstrong Teasdale announced that Financial and Real Estate Services Partner Erin Edelman has been selected to lead the firms Restructuring, Insolvency and Bankruptcy practice. Edelman succeeds Partner Richard Engel, who was named Armstrong Teasdale General Counsel earlier this year.

In the role, Edelman will oversee a robust team of more than 30 attorneys in offices throughout the U.S. Attorneys in the Restructuring, Insolvency and Bankruptcy practice have appeared and practiced in virtually every federal jurisdiction in the U.S. as well as the U.K., and have been chosen to represent debtors, creditors and creditors committees in some of the largest and most complex bankruptcies and restructurings. Our team has experience working on a wide range of domestic and cross-border matters, including advisory, transactional and contentious work, with a particular focus on the automotive, food, manufacturing, financial services, real estate, oil and gas, and retail and leisure sectors.

Since joining the firm in 2016, Erin has been an incredible asset to firm clients through complex bankruptcies and multimillion-dollar litigation proceedings, said Partner Robert Klahr, who leads the firms Financial and Real Estate Services practice group. This leadership role provides a great opportunity for her to drive the practice forward and continue to sharpen the skill sets of our strong team.

Edelman regularly counsels clients in bankruptcy, commercial and real estate litigation matters. She represents the interests of debtors, secured lenders and unsecured creditors seeking to maximize their return through bankruptcy or out-of-court restructuring. Edelman handles a variety of complex transactions and litigation related to corporate restructuring, including defending and prosecuting preference and related litigation, negotiating and documenting capital and debt structures, and loan workouts and asset acquisitions and divestitures. Edelman has recently handled a number of high-profile Chapter 11 and post-bankruptcy proceedings, including for a specialty footwear retailer and its related debtor affiliates, as well as a major coal company.

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Partner Edelman to Lead Armstrong Teasdale's Restructuring, Insolvency and Bankruptcy Practice - News - ABL Advisor

Formula 1 flaunts 'their motorsport ladder'. Formula 2 and 3 were structured to lead talents to F1, but nothing could be further from the truth. In the end, it's all about the people who can help you, and the bag of money you bring. Guanyu Zhou will get a seat, and Oscar Piastri will not.

Formula 1 is the top of the motorsport pyramid, but the road to it is different for everyone. For years, all the different entry classes have had different names. Think about Formula 3000, GP2/GP3, the Formula Renault Series, DTM or the Word Sportcar Championship. F1, under the leadership of Ross Brawn, wanted to get rid of all these different classes, and have one clear path to Formula 1.

Although Formula 2 and 3 were not really inventions of the new leadership, they did boast that talents like Charles Leclerc, Lando Norris and George Russell came to the top via that route. They shone in the various classes on their way to the top and got their chance in F1. The question is, however, was this because of the model?

Sure Leclerc, Norris and Russell all did great in their route to Formula 1, but can you really attribute this to the new route of F1's leadership? Ferrari already picked up Leclerc in karting and guided him through all the junior classes. It was they who offered the young Monegasque a chance at Alfa Romeo, only to promote him to Ferrari just one year later.

The same goes for Norris and Russell, who were given a route by McLaren and Mercedes. Each went his own way but were guided by an F1 team. F1 might be happy with the promotion of these young drivers, but to call that the merit of the model was a bit much.

The fact that Nyck de Vries wasn't picked up by a Formula One team at the end of 2019 wasn't even that crazy. He needed several years in F2 to really compete for the title, so when he finally won the title in 2019, most teams had already dropped out. Williams chose the runner-up, Nicholas Latifi because he had a big bag of money.

So there you have it that the ladder of F1 is not always a success. However, at that time we didn't hear from the F1 management. There was nobody from the F1 management who helped De Vries to get a seat in F1. In the end, it is the teams who decide who they will hire, regardless of the results in the starting classes.

In 2021, however, the same scenario begins to unfold, but with a much bigger talent. Oscar Piastri is considered one of the biggest talents of the moment. The Australian impressed by winning the title in his first year in Formula 3 and is now doing the same again in F2. A great talent, but there is no place in Formula 1.

For 2022 there is only one seat left to give, and that is the seat next to Valtteri Bottas at Alfa Romeo. Antonio Giovinazzi is still in that seat, but according to various sources, the Italian is not the favourite for the seat. That would be Chinese Guanyu Zhou, who reportedly has a thirty million euro pocket and could make a particularly fine contribution for the small team.

With Zhou in the Alfa Romeo seat, a situation could arise where the F3 and F2 champions are out of the running. Piastri might want to give up the F2 title, which would allow him to stay active in F2 for at least another year. An unusual situation, which you don't hear about from the top of F1.

Where the top of F1 used to shout from the rooftops that the model was such a success with the breakthroughs of Leclerc, Russell and Norris, you now hear nobody about this awkward situation. It immediately shows the weakness of this whole model. In the end, the breakthrough of talent still depends on the ties with a team, or how big his bag of money is.

In Piastri's case, he seemed fine with Alpine. The French team has been showing off its training for years, and Cyril Abiteboul expressed years ago that the goal was to bring talent to F1. With the death of Anthoine Hubert, a great talent fell out of their training, but with Zhou and Piastri Alpine now has the number 1 and 2 from the F2 championship.

However, it now appears that the plan of Alpine is not so well thought out. Where talents of Ferrari, Mercedes and Red Bull can grow step by step to Formula 1, with even step possibilities in F1, Alpine has not taken their plan that far. Up to F2, the plan has been thought through, but how the talents get into F1 has not been thought through.

In fact, Alpine has already provided the current drivers with a new contract for 2022. In fact, Esteban Ocon has been contracted for the next three years. With Fernando Alonso at his side, there seems to be a duo for the coming years. Without a customer team to house their talents, you may wonder where Alpine sees their talents debuting in F1?

Where Zhou, with his bag of money and Chinese nationality, seems to be able to force a spot in F1, the biggest talent from Alpine's education falls by the wayside. Where is the help from Alpine now, and above all; Where is the help from Formula 1? If the champion of F3 and F2 doesn't get a place in F1, what do you have to do to climb the ladder of motorsport into F1?

It all goes to show that it's not about how well you perform in the entry-level classes, it's mainly about who you know and how much money you have. In training with Mercedes, Ferrari or Red Bull, Piastri would probably have been offered a place at Williams, Alfa Romeo or AlphaTauri by 2022. As a member of the Alpine academy, however, he is grabbing the wrong spot.

It would behove F1 to stick their necks out for once. If they really are that high up on their motorsport ladder, then the F2 champion should actually get a seat in F1. The last seat is available at Alfa Romeo, but that team is logically looking at Zhou's pennies and abilities as well. Let F1 and/or Alpine come up with a joint bid that gives Piastri his deserved seat. If not, that's simply the bankruptcy of the motorsport ladder and, of course, Alpine's education.

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Zhou shows the bankruptcy of the motor racing ladder and the Alpine academy - GPblog

The president of the European Central Bank (ECB), Christine Lagarde, put down on Friday the impact that a possible bankruptcy of the Chinese real estate giant Evergrande would have on the euro zone.

I have very present memories of the latest events in the Chinese stock market, which have had an impact around the world, but in Europe and, in the Eurozone in particular, direct exposure would be limited, said the French economist in an interview with CNBC.

At the moment, what we see is a China-focused impact and exposure, Lagarde added, while acknowledging that the ECB is closely watching the situation, given the interconnectedness of financial markets around the world.

The debts of the private conglomerate reach 305,000 million dollars.

A possible default would generate a sharp slowdown in the construction sector in China and cause repercussions on world markets.

Group president Xu Jiayin, which had one of the largest fortunes in the Asian country, stressed on Wednesday that his group must do everything possible to fulfill its commitments.

Asked about the risk of constant inflation in the euro zone, which in August exceeded the 2% target set by the ECB for the medium term, Lagarde said that she expected a return to much greater stability next year, since many of the causes of price increases are temporary.

It has a lot to do with energy prices, said the president of the European banking supervisor, although she added as another factor the increase in VAT in Germany, after the three-point decrease applied in the second half of 2020 to sustain consumption due to the covid-19 pandemic.

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Lagarde believes that the possible bankruptcy of Evergrande will have limited effects in the euro zone - Market Research Telecast