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2021 Spring Investment Forum

April 14 - 15, 2021, Wednesday & Thursday.

The College will be hosting a Virtual Spring Investment Forum featuring relevant topics and networking opportunities! Details regarding specific panel topics and speakers are soon to follow. 
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ACIC Private Notes                         February 2021
Welcome to the February 2021 edition of the ACIC Private Notes!

This edition brings you:
  • Recent case law summaries from the Mid-Atlantic Region, prepared by Maggie Parker-Yavuz (Akin Gump);
  • Recent case law summaries from the Midwest Region, prepared by Michael Robson (Greenberg Traurig);
  • A sneak peek of the 2021 Virtual Spring Investment Forum, courtesy of this year's amazing co-chairs, Robin Lenarz (Securian Asset Management) and Heather Wenzel (Morgan Lewis); and
  • A spotlight on the ACIC's new members, courtesy of Lisa Conmy (Foley Lardner).
Recent Case Law Summaries 
Mid-Atlantic Update
In In re Tribune Co., 972 F.3d 228 (3d Cir. 2020), holders of senior notes issued by the Tribune Company argued that the company's plan of reorganization should not have been confirmed because it did not fully enforce subordination provisions in the indentures and that the plan unfairly discriminated against them. The Third Circuit upheld the rulings of the bankruptcy court and the district court that the cramdown provisions of section 1129(b)(1) do not require subordination agreements to be strictly enforced in order for a plan to be confirmed, and that although the plan discriminated against the senior noteholders, the discrimination was not unfair. Click here to learn more.
In In re Lehman Bros. Holdings Inc., 970 F.3d 91 (2d Cir. 2020), a Lehman Brothers affiliate that was party to a number of CDO transactions filed an adversary proceeding in bankruptcy court to recover approximately $1 billion that was distributed to noteholders after the Lehman Brothers Holdings Inc. bankruptcy triggered a default under swap agreements relating to the CDO transactions, alleging that unfavorable waterfall provisions in the transaction documents were unenforceable ipso facto clauses. The Second Circuit upheld the ruling of the district court that, even if the provisions were ipso facto clauses, they were nevertheless enforceable under section 560 of the Bankruptcy Code, which creates a safe harbor for the liquidation of swap agreements. Click here to learn more.
In re Areogroup Int'l, Inc., 2020 U.S. Dist. LEXIS 155442 (D. Del. August 27, 2020) is a case concerning a dispute between two secured lenders regarding the allocation of proceeds from a sale of Aerogroup's assets in a §363 auction and addresses the question of whether a secured lender may be allocated more than the amount it credit bids if its bid ultimately is not the successful bid and the assets are sold to another bidder for a higher price. The district court upheld the bankruptcy court's finding that a creditor's secured claim is not capped by a credit bid that is subsequently exceeded by a higher bid. Click here to learn more.
Midwest Update

In BMO Harris Bank N.A. v. Bullet Trans Co., 2020 WL 3447778 (N.D. Ill., 06/24/2020), the United States District Court for the Northern District of Illinois held that the borrower (who had defaulted on several commercial loans) had no counterclaim against its lender for breach of contract, ruling that the lender had not violated the loan agreements by attempting to enforce and collect on the agreements' penalty clauses, which the borrower argued were invalid and unenforceable, and rejected the borrower's false imprisonment claim. Click here to learn more.
In First State Bank Nebraska v. MP Nexlevel LLC, 2020 WL 5581733 (Sept. 18, 2020), the Nebraska Supreme Court found that a state trial court erred in dismissing a secured lender's action to collect on a third party accounts receivable assigned to the lender by a borrower as security for a defaulted loan, ruling that the account payee was obligated to make payments it owed under a contract with the borrower directly to the secured lender because the borrower's grant of a security interest in its accounts as security for a commercial loan constituted an assignment. Click here to learn more.
In First Security Bank v. Buehne et al., No. 121,765 (Kan. Ct. App. Sept. 18, 2020), a dispute between borrowers and a lender with a security interest in the borrowers' business equipment, the Kansas Court of Appeals found there was no strongly held public policy interest that would require it to invalidate the borrowers' waiver of the statute of limitations regarding the lender's enforcement of the note's acceleration clause. Click here to learn more.
Sneak Peak of the 2021 Spring Investment Forum
The 2021 Spring Investment Forum is just around the corner, taking place virtually on April 14 and 15! Please click here to read a message from the Forum's co-chairs, which reveals this year's theme and a handful of panel topics.
More information about how to register, the panels and the speakers will be coming soon! Please check back at this link frequently for updates.
Spotlight on New Members
The ACIC is thrilled to welcome the following new members since August 2020:
  • Michael Urschel (King & Spalding)
  • Jonathan Arkins (King & Spalding)
  • Ryan McNaughton (King & Spalding)
  • Katy Berger (King & Spalding)
  • Ignacio Hirigoyen (Prudential)
  • Brandon Van Balen (Genworth)
  • Sobara Simon-Hart (MetLife)
  • Katherine von Geldern (Symetra)
  • Michael Warren (Taft Stettinius & Hollister)
To learn more about our newest colleagues, please click here.