The Supreme Court has ruled for a second time on the seemingly endless litigation over the J. Howard Marshall II estate, sparking debate among practitioners as to whether the ruling will have a substantial impact on the flow of bankruptcy litigation. In addition, Chapter 11 business filings are down, a statistic that would seem counterintuitive during a recession. This special report delves into these and more, including the impact of Hart-Scott-Rodino premerger notification requirements on bankruptcy sales and jurisdictional issues that arise for retirement plans during bankruptcy.

Tabloids aside, what does ruling in ‘Stern v. Marshall’ mean?
The U.S. Supreme Court’s 5-4 ruling in Stern v. Marshall was the capstone in the epic battle involving the late tabloid siren Anna Nicole Smith over oil tycoon J. Howard Marshall II’s estimated $1.6 billion estate. So what does the Court’s June 23 ruling really mean for bankruptcy cases?


What happened to Chapter 11 business filings?

With the economic decline following the Great Recession of 2008-10 and the resulting tightening of commercial credit in the United States, business Chapter 11 filings should be at an all-time high. Instead, the filing statistics maintained by the Administrative Office of the U.S. Courts illustrate a different trend.

Crucial issues arise for retirement plans during bankruptcy
The administration or termination of an employee stock ownership plan, 401(k) plan or other tax-qualified retirement plan during a bankruptcy case by the debtor/plan sponsor presents a number of administrative, regulatory and jurisdictional issues. The bankruptcy trustee must comply with regulatory and fiduciary requirements in connection with such retirement plans.

Premerger notification requirements complicate bankruptcy sales
Section 363 sales are often time-sensitive due to deteriorating asset values, but there is no bankruptcy exemption from compliance with the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR). Accordingly, developing a strategy to address the requirements of HSR is critically important in any qualifying transaction.

Impact of bankruptcy on prepayment provisions of financial instruments
Understanding the history behind make-wholes is important because it reinforces that make-whole amounts represent an estimate of true damages suffered to “make the noteholder whole” rather than merely a penalty or unmatured interest. It also explains why floating-rate debt typically does not carry a make-whole amount or no-call protection.