ABI Blog Exchange

The Office of the Comptroller of the Currency has been leading the charge on revamping the Community Reinvestment Act, but a big unknown is whether the other two regulators charged with carrying out the law are committed to moving ahead as swiftly on a reform plan.

In an April 6, 2018 memorandum opinion and order, U.S. District Judge John G. Koeltl dismissed an appeal challenging the Chapter 15 recognition of a Cayman Islands restructuring of an offshore drilling contractor, holding that the appellant lacked standing and that the appeal was equitably moot. See In re Ocean Rig UDW Inc., No. 17-cv-7222 (JGK), 2018 WL 1725223 (S.D.N.Y. Apr. 6, 2018).

The appeal was brought by a purported shareholder of debtor Ocean Rig UDW Inc. (“UDW”). The purported shareholder sought review of an order issued by U.S. Bankruptcy Judge Martin Glenn granting recognition of provisional liquidation and scheme of arrangement proceedings in the Cayman Islands of UDW and three of its subsidiaries (Drill Rigs Holdings Inc. (“DRH”), Drillships Financing Holding Inc. (“DFH”), and Drillships Ocean Ventures Inc. (“DOV”), collectively the “Debtors”) as “foreign main proceedings” under section 1517 of the Bankruptcy Code.

Section 365 of the Bankruptcy Code provides that a debtor “subject to the court’s approval, may assume or reject any executory contract or unexpired lease of the debtor.”  11 U.S.C. § 365.  This provision is a powerful tool because it allows a chapter 11 debtor to assume agreements that will be beneficial to restructuring efforts while rejecting agreements that are burdensome.  Given its importance, the application of section 365 is not without challenge and subject to interpretation.

Two recent bankruptcy court decisions, In re Cho, 581 B.R. 452 (Bankr. D. Md. 2018) and In re Thane International, Inc., No. 15-12186-KG, 2018 WL 1027658 (Bankr. D. Del. Feb. 21, 2018), examine the fundamentals of executory contracts — when a contract is “executory” and whether there can be an “implied” assumption and assignment of an executory contract.

In re Cho

Considering whether a prepetition settlement agreement was an executory contract that could be rejected, the Maryland bankruptcy court, in Cho, observed: “whether a contract is executory depends on the facts of the particular matter, the language of the subject agreement, and the consequences under applicable nonbankruptcy law of either party ceasing to perform any ongoing or remaining obligations under the contract.”  Cho, 581 B.R. at 454.

Bertucci’s Holdings, Inc., along with nine subsidiaries and affiliates, has filed a petition for relief under Chapter 11 in the Bankruptcy Court for the District of Delaware (Lead Case No. 18-10894).  Bertucci’s, headquartered in Worcester, MA, is a brick oven Italian eatery with fifty-nine (59) locations through the Northeast and Mid-Atlantic.  According to the First Day Declaration, Bertucci’s enters Chapter 11 intending to immediately reject 29 of its leases and intends to pursue a sale of substantially all of its assets, with Right Lane Dough Acquisition, LLC, as stalking horse purchaser.  Bertucci’s is also seeking approval to borrow up to $4 million in DIP Financing from Right Lane Dough.

Bank of America Corp. hit a milestone in its years-long effort to get costs under control.

Expanding SBA funding and providing additional Community Reinvestment Act credit could help boost female entrepreneurs.

Comptroller of the Currency Joseph Otting took office only late last year, but he is wasting little time in tackling a series of hot-button topics, including easing anti-money laundering regulations and lowering national bank fees.