Many investors in CDOs and similar products were taken by surprise when a U.S. bankruptcy court declined to dismiss an involuntary chapter 11 case filed against CDO-squared issuer Zais Investment Grade Ltd. VII (a.k.a. ZING VII). A test of the so-called bankruptcy-remoteness of offshore issuers was perhaps inevitable given the volume of distressed CDO securities in the market today. From a pure bankruptcy law perspective, the court's decision is not revolutionary; it simply confirms the reality that entities can still wind up in bankruptcy even if they were structured to avoid it. But for investors in the lower tranches of distressed CDOs hoping to see values rebound over time, the ZING VII bankruptcy makes the prospect of future "tranche warfare" in chapter 11 seem inevitable. It remains to be seen whether the dismissal will be affirmed on appeal, whether ZING VII's senior noteholders will succeed in confirming their chapter 11 plan, and most importantly, whether ZING VII is merely the first of many CDO bankruptcy cases to come. Regardless of ZING VII's ultimate outcome, the bankruptcy court's analysis in denying the motion to dismiss should be considered carefully as market participants structure, sell or buy into future CDOs.

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