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Bankruptcy Court Approves Service of Subpoenas Via Email and Twitter

In the Chapter 15 case of Three Arrows Capital, Ltd., the Bankruptcy Court for the Southern District of New York recently held that Rule 45 of the Federal Rule of Civil Procedure (“Rule 45”) authorizes service of subpoenas to...more

A Modified Countryman Test for Multi-party Executory Contracts

In a recent decision, the Court of Appeals for the Fifth Circuit held that an agreement between a debtor, a surety, and third-party beneficiaries was not an executory contract and, thus, was ineligible to pass-through the...more

Texas Two Step is Alive and Well

The Bankruptcy Court for the District of New Jersey denied motions to dismiss the chapter 11 case of the newly created subsidiary of Johnson & Johnson, LTL Management LLC, and granted the debtor’s motion to stay prosecution...more

Avoiding an Out-of-Court Restructuring May Breach Fiduciary Duties

Introduction Under Delaware law, the board of directors of an insolvent company has wide latitude to pursue good-faith strategies to maximize the value of the firm. Trenwick Am. Litig. Tr. v. Ernst & Young, L.L.P., 906 A.2d...more

New Bill Would End the ‘Texas Two-Step’ and Eliminate Non-Debtor Releases in Chapter 11

Highlights Introduction Last week, the House Judiciary Committee voted to send the Nondebtor Release Prohibition Act of 2021 to the floor of the house for vote. If passed, the bill would introduce two major amendments to the...more

The 365(h) Effect: Guaranty Survives Rejection of Underlying Agreement

In a recent decision, the Court of Appeals for the Sixth Circuit held that the election of a tenant, under Section 365(h) of the Bankruptcy Code, to remain in possession of real property governed by a rejected lease causes a...more

Thou Shall Not Interfere With Special Purpose Entities’ Contractual Obligations

A recent decision of the New York Court of Appeals, Sutton v. Pilevsky held that federal bankruptcy law does not preempt state law tortious interference claims against non-debtors who participated in a scheme that caused a...more

Coal Act Premiums are Nondischargeable Taxes rather than Dischargeable Claims

Dischargeable Claims - In a recent ruling, the District Court for the Middle District of Florida affirmed a bankruptcy court’s ruling that the premiums arising under the Coal Industry Retiree Health Benefit Act of 1992...more

The Protecting Employees and Retirees in Business Bankruptcies Act of 2020: A Sign of the Times

On September 29, 2020, the United States House of Representatives Committee on the Judiciary advanced a Democrat-backed bill to the full chamber that seeks to address perceived shortcomings in the Bankruptcy Code’s...more

Subordination Agreement Ignored in a Cramdown — But What’s So Unfair About That?

Recently, in In re Tribune Company, the Third Circuit affirmed that the Bankruptcy Code means exactly what it says and that the enforcement of subordination agreements can be abridged when cramming down confirmation of a...more

Second Circuit Affirms Enforceability of Swaps’ Flip Provisions

Swaps, together with repurchase agreements, forward contracts, securities contracts and commodities contracts receive special treatment under the bankruptcy code-they are largely exempt from the automatic stay, bankruptcy...more

Bank Customers as “Financial Institutions” Under the 546(e) Securities Safe Harbor

Analyzing the inner workings of the elements required for the securities contract “safe harbor” protection under Section 546(e) of the Bankruptcy Code, the Bankruptcy Court for the SDNY dismissed a complaint seeking to...more

Are Critical Vendors Insulated from Preference Actions?

No, says the Delaware Bankruptcy Court in In re Maxus Energy Corp. In Maxus, the defendant, Vista Analytical Laboratory, Inc. (“Vista” or the “Defendant”), a designated critical vendor, sought summary judgement dismissing the...more

Delaware Bankruptcy Court Diverges from Fifth Circuit: Minority Shareholder’s Blocking Right Invalidated and Fiduciary Duty...

In a recent bench ruling, the Delaware bankruptcy court denied a motion to dismiss a chapter 11 bankruptcy filing, notwithstanding the fact that the filing contravened an express bankruptcy-filing blocking right, or “golden...more

In Second Circuit, “Economic Reality” and Degree of Control to Determine Whether an “Employer” Faces “Single Employer” Liability

In a recent decision on motions for summary judgement in the TransCare case, the SDNY bankruptcy court addressed the test for the imposition of liability under the US and New York Worker Adjustment and Retraining Notification...more

Fresh Air and Fresh Start: Are Environmental Regulatory Penalties Dischargeable?

Two courts recently answered “yes,” finding that environmental claims brought against reorganized debtors by government entities were discharged under confirmed Chapter 11 plans of reorganization. In In re Exide Techs., 613...more

Claims Based on Avoidable Transfer Cannot be “Washed Clean” in the Secondary Market

Disagreeing with the much-critiqued SDNY opinion in Enron, the SDNY bankruptcy court disallowed claims brought by secondary transferees because the original claimants allegedly received millions of dollars in fraudulent...more

Securities Contract Safe Harbor Defeats Attack on Global Restructuring

Section 546(e) of the Bankruptcy Code excepts certain transfers made to certain protected parties, under or in respect of securities contracts, from avoidance as preferences or constructively fraudulent transfers. A recent...more

Gerrymandering votes in bankruptcy?  The classification of an undersecured claim 

Confirmation of a Chapter 11 plan generally requires the consent of each impaired class of creditors. A debtor can “cramdown” a plan over creditor dissent, however, as long as at least one class of impaired claims accepts the...more

The U.S. Supreme Court Holds that Orders Granting or Denying Lift Stay Motions are Final

The consequences of an order or judgement being final or interlocutory are enormous. An order from an interlocutory order requires leave since these orders are not appealable as of right. In addition, a failure to obtain...more

Second Circuit Paves a Way to Protect LBO Payments from Avoidance Actions 

The Second Circuit Court of Appeals recently held in In re Tribune Company Fraudulent Conveyance Litigation, No. 13-3992-cv (L) (2d Cir., Dec. 19, 2019) that Bankruptcy Code Section 546(e) barred claims seeking to avoid...more

Third Circuit Clarifies the Inner Workings of Foreclosure on Repo Collateral

In the fifth opinion involving the repo liquidation saga of HomeBanc, the Third Circuit addressed several crucial issues involving the liquidation and valuation of repo collateral in bankruptcy. In re HomeBanc Mortg....more

Jurisdiction Over Rejection of Power Purchase Agreements—Confusion Continues

Periods of volatility in energy prices cause spikes in energy companies’ bankruptcies. These bankruptcies lead to debtors’ attempts to reject power purchase agreements (“PPAs”). These attempts ignite the unresolved legal...more

Appointing a Future Claims Representative: Recent Developments

A New Jersey District Court recently addressed several issues in connection with the appointment of a future claims representative (“FCR”). In light of the recent increase in mass-tort bankruptcy cases, exploring these issues...more

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