Section 546(e) of the Bankruptcy Code’s “safe harbor” preventing avoidance in bankruptcy of certain securities, commodity, or forward-contract payments has long been a magnet for controversy. Several noteworthy court rulings...more
10/3/2023
/ Article III ,
Bankruptcy Code ,
Chapter 11 ,
Chapter 7 ,
Commercial Bankruptcy ,
Corporate Restructuring ,
Fraudulent Transfers ,
Safe Harbors ,
Securities Contracts ,
Sovereign Immunity ,
Standing
The court-fashioned doctrine of "equitable mootness" has frequently been applied to bar appeals of bankruptcy court orders under circumstances where reversal or modification of an order could jeopardize, for example, the...more
Bankruptcy trustees and chapter 11 debtors-in-possession ("DIPs") frequently seek to avoid fraudulent transfers and obligations under section 544(b) of the Bankruptcy Code and state fraudulent transfer or other applicable...more
10/3/2023
/ Abrogation ,
Bankruptcy Code ,
Bankruptcy Court ,
Bankruptcy Trustees ,
Chapter 11 ,
Debtors-in-Possession ,
Fraudulent Transfers ,
Government Entities ,
Internal Revenue Code (IRC) ,
IRS ,
Sovereign Immunity
Federal appellate courts have traditionally applied a "person aggrieved" standard to determine whether a party has standing to appeal a bankruptcy court order or judgment. However, this standard, which requires a direct,...more
On June 6, 2023, the U.S. Bankruptcy Court for the Southern District of Texas confirmed the chapter 11 plan of bedding manufacturer Serta Simmons Bedding, LLC and its affiliates (collectively, "Serta"). In confirming Serta's...more
Section 546(e) of the Bankruptcy Code's "safe harbor" preventing avoidance in bankruptcy of certain securities, commodity, or forward-contract payments has long been a magnet for controversy. Several noteworthy court rulings...more
There is longstanding controversy concerning the validity of third-party release provisions in non-asbestos trust chapter 11 plans that limit the potential exposure of various nondebtor parties involved in the process of...more
7/28/2023
/ Bankruptcy Code ,
Bankruptcy Court ,
Bankruptcy Preferences ,
Chapter 11 ,
Chapter 13 ,
Chapter 15 ,
Chapter 7 ,
Commercial Bankruptcy ,
Consumer Bankruptcy ,
Creditors ,
Debtors ,
Restructuring ,
SCOTUS
The finality of asset sales and other transactions in bankruptcy is an indispensable feature of U.S. bankruptcy law designed to maximize the value of a bankruptcy estate as expeditiously as possible for the benefit of all...more
Since May 2023, the U.S. Supreme Court has issued three decisions addressing or potentially impacting issues of bankruptcy law. These included rulings concerning the abrogation of sovereign immunity for Native American tribes...more
7/28/2023
/ Bankruptcy Code ,
Bankruptcy Court ,
Chapter 11 ,
Fin Oversight & Mgmt Bd for Puerto Rico v Centro de Periodismo Investigativo Inc ,
Financial Services Industry ,
Lac du Flambeau Band of Lake Superior Chippewa Indians v Coughlin ,
Native American Issues ,
Puerto Rico Oversight Management and Economic Stability Act (PROMESA) ,
SCOTUS ,
Sovereign Immunity ,
Takings Clause ,
Tribal Corporations ,
Tribal Loans ,
Tyler v Hennepin County Minnesota
Whether a dispute that is subject to arbitration can or must be referred to arbitration after one of the parties to a prepetition arbitration agreement files for bankruptcy has long been a source of disagreement among...more
In Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973 (2017), the U.S. Supreme Court held that the Bankruptcy Code does not allow bankruptcy courts to approve distributions to creditors in a "structured dismissal" of a chapter...more
There is longstanding controversy concerning the validity of third-party release provisions in non-asbestos trust chapter 11 plans that limit the potential exposure of various non-debtor parties involved in the process of...more
A bankruptcy trustee's ability to avoid and recover pre-bankruptcy preferential transfers is essential to preserving or augmenting the estate for the benefit of all stakeholders. In 2019, however, the Bankruptcy Code was...more
7/28/2023
/ Affirmative Defenses ,
Avoidance ,
Bankruptcy Code ,
Bankruptcy Court ,
Bankruptcy Trustees ,
Chapter 11 ,
Chapter 7 ,
Commercial Bankruptcy ,
Debtors-in-Possession ,
Delaware ,
Due Diligence ,
Preferential Transfers
To prevent "trafficking in corporate shells," the Bankruptcy Code prohibits any discharge of corporate or partnership debts if the debtor is not an "individual" and, in a chapter 11 case, if the debtor proposes a liquidating...more
Section 363(m) of the Bankruptcy Code provides that the reversal or modification of an order approving a sale or lease of assets in bankruptcy does not affect the validity of the sale or lease to a good-faith purchaser or...more
Exculpation clauses limiting the liability of certain entities for actions taken in connection with a bankruptcy case are a common feature of chapter 11 plans. However, courts disagree over the permitted scope of such...more
To prevent landlords under long-term real property leases from reaping a windfall for future rent claims at the expense of other creditors, the Bankruptcy Code caps the amount of a landlord's claim against a debtor-tenant for...more
Corporate restructurings are not always successful for many reasons. As a consequence, the bankruptcy and restructuring laws of the United States and many other countries recognize that a failed restructuring may be followed...more
Section 363(m) of the Bankruptcy Code provides that the reversal or modification of an order approving a sale or lease of assets in bankruptcy does not affect the validity of the sale or lease to a good-faith purchaser or...more
6/19/2023
/ 363 Sales ,
Bankruptcy Code ,
Bankruptcy Court ,
Chapter 11 ,
Commercial Bankruptcy ,
Jurisdiction ,
MOAC Mall Holdings LLC v Transform Holdco LLC ,
Mootness ,
Sale of Assets ,
SCOTUS ,
Sears ,
Section 363 ,
Stays
Chapter 15 Recognition Limited to Foreign Insolvency, Liquidation, or Restructuring Proceedings -
In In re Global Cord Blood Corp., 2022 WL 17478530 (Bankr. S.D.N.Y. Dec. 5, 2022), the U.S. Bankruptcy Court for the...more
In In re Global Cord Blood Corp., 2022 WL 17478530 (Bankr. S.D.N.Y. Dec. 5, 2022), the U.S. Bankruptcy Court for the Southern District of New York denied without prejudice a petition filed by the joint provisional liquidators...more
A chapter 11 plan may be modified after votes have been solicited on the plan, but prior to confirmation, without providing creditors and interest holders with an amended disclosure statement and another opportunity to vote...more
Like debtors, bankruptcy trustees, official committees, examiners, and estate-compensated professionals, foreign representatives in chapter 15 cases have statutory reporting obligations to the bankruptcy court and other...more
A handful of recent high-profile court rulings have considered whether a chapter 11 debtor is obligated to pay postpetition, pre-effective date interest ("pendency interest") to unsecured creditors to render their claims...more
Lawyer Spotlights: Genna Ghaul and Nicholas J. Morin -
The Year in Bankruptcy: 2022 -
A brief chronicle of the year's notable developments in corporate bankruptcy and restructuring, including business bankruptcy...more