Various debt-burdened retailers are looking to their intellectual property assets as a source of untapped value for refinancing transactions. While it remains to be seen which strategies will be most successful, IP assets will play a key role in future retail restructurings. As the value of brick-and-mortar “hard” assets stores becomes tapped out, a retailer’s brands, licenses, and associated IP rights may present reliable sources of value.
In many instances, government investigations and claims are the tipping points for already distressed health care companies causing them to seek Chapter 11 protection. As discussed herein, governmental involvement in these financial restructurings at the very least complicates the process of reorganizing these entities.
In a June 12, 2017 decision, the U.S. Supreme Court unanimously held that certain consumer finance companies that purchase and collect defaulted debts originated by other lenders are exempt from the strictures of the FDCPA. The case, which turns on who qualifies as a “debt collector” under the FDCPA, has significant implications for the distressed debt industry and will likely lead to industry-wide changes as companies restructure so as to benefit from the guidance contained in this ruling.
Courts have generally found that make-whole provisions do not provide for the payment of unmatured interest, nor are they unenforceable liquidated damages provisions. It would behoove the court in ‘Ultra Petroleum’ to continue the precedent on these issues, because failure to do so would call into question the ever-important principle that when evaluating documents governed by New York law, courts will generally defer to the mutual intent of the parties as manifested within the four corners of the document.
The pressures inherent in “time is of the essence” closings can breed ill-informed, and at times, regrettable decisions aimed at avoiding the potentially catastrophic result of failing to timely close. Bankruptcy can provide a “breathing spell” for financially distressed single-asset entities whose entire value is dependent on whether it can meet a “time is of the essence” deadline.
‘Husky’ will have a significant impact in the area of fraudulent conveyance litigation. Parties that engage in intentional fraudulent conveyances will now be subject to the “actual fraud” provision in Bankruptcy Code §523(a)(2)(A).ha