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
3/15/2023
/ British Virgin Islands ,
Chapter 15 ,
Commercial Bankruptcy ,
Corporate Counsel ,
Cryptocurrency ,
Email ,
Federal Rules of Civil Procedure ,
Foreign Investment ,
Investment ,
Subpoenas ,
Twitter ,
Young Lawyers
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
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
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
12/3/2021
/ Bankruptcy Court ,
Breach of Duty ,
Business Judgment Rule ,
Commercial Bankruptcy ,
Debt ,
Delaware General Corporation Law ,
Duty of Loyalty ,
Fiduciary Duty ,
Indemnification ,
Insolvency ,
Lenders ,
Liquidation ,
Motion to Dismiss ,
Personal Liability ,
Restructuring
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
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
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
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
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
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
9/1/2020
/ Appeals ,
Bankruptcy Code ,
Chapter 11 ,
Commercial Bankruptcy ,
Cramdown ,
Creditors ,
Debtors ,
Discrimination ,
Interest Rate Swaps ,
Parent Corporation ,
Reorganizations ,
Senior Secured Debt ,
Subordination Agreement
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
8/18/2020
/ Appeals ,
Automatic Stay ,
Bankruptcy Code ,
Collateralized Debt Obligations ,
Commercial Bankruptcy ,
Commodity Sale Agreements ,
Exemptions ,
Flip Transactions ,
Forward Contracts ,
Ipso Facto Clauses ,
Lehman Brothers ,
Liquidation ,
Noteholders ,
Reaffirmation ,
Repurchase Agreements ,
Securities ,
Swaps
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
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
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 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
5/22/2020
/ Chapter 11 ,
Chapter 7 ,
Commercial Bankruptcy ,
Common Ownership ,
Corporate Restructuring ,
Debtors ,
Economic Realities Test ,
Financial Distress ,
Layoffs ,
Motion for Summary Judgment ,
Private Equity Funds ,
Single Employer Liability Test ,
Unpaid Wages ,
WARN Act
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
5/15/2020
/ Air Pollution ,
Appeals ,
Bankruptcy Code ,
Bankruptcy Discharge Order ,
Batteries ,
Carve Out Provisions ,
Chapter 11 ,
Civil Monetary Penalty ,
Coal Industry ,
Commercial Bankruptcy ,
Common Law Claims ,
Corporate Restructuring ,
Debtors ,
Dischargeable Debts ,
Enforcement Actions ,
Environmental Violations ,
Fines ,
Fraud ,
Global Warming ,
Municipalities ,
Permanent Injunctions ,
Police Power ,
Proof of Claims ,
Public Nuisance ,
Recycling ,
State Regulators ,
Strict Liability
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
4/29/2020
/ Avoidable Transfer ,
Bank Fraud ,
Bankruptcy Code ,
Banks ,
Chapter 11 ,
Commercial Bankruptcy ,
Corporate Crimes ,
Criminal Proceeds ,
Debtors ,
Fraudulent Transfers ,
Secondary Markets ,
Section 502
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
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
2/24/2020
/ Bankruptcy Code ,
Bifurcation ,
Chapter 11 ,
Commercial Bankruptcy ,
Commercial Buildings ,
Confirmation Proceedings ,
Cramdown ,
Creditors ,
Debtors ,
Flooding ,
Gerrymandering ,
Secured Debt ,
Shopping Centers ,
Unsecured Debt
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
1/28/2020
/ Appeals ,
Automatic Stay ,
Bankruptcy Court ,
Commercial Bankruptcy ,
Creditors ,
Debtors ,
Dismissals ,
Federal Rules of Bankruptcy Procedure ,
Final Judgment ,
Interlocutory Orders ,
Mootness ,
Motion for Relief from Automatic Stay ,
Non-Appealable Decisions ,
Reaffirmation ,
Right To Appeal ,
Ritzen Group Inc v Jackson Masonry LLC ,
SCOTUS ,
Time-Barred Claims
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
1/21/2020
/ Appeals ,
Avoidance ,
Bankruptcy Code ,
Commercial Bankruptcy ,
Creditors ,
Dismissals ,
Financial Institutions ,
Fraudulent Conveyance ,
Leveraged Buyout ,
Merit Management Group v FTI Consulting ,
Preemption ,
Safe Harbors ,
Section 546(e) ,
Shareholders ,
Standing ,
Subsidiaries ,
Unsecured Debt
Yes, says the Third Circuit. The Third Circuit recently held that the Bankruptcy Court has the authority to confirm a chapter 11 plan which contains nonconsensual, third-party releases when such releases are integral to the...more
1/13/2020
/ Bankrtupcy Confirmation Plans ,
Bankruptcy Court ,
Centers for Medicare & Medicaid Services (CMS) ,
Chapter 11 ,
Commercial Bankruptcy ,
Constitutional Challenges ,
Counterclaims ,
Creditors ,
Debtors ,
Department of Justice (DOJ) ,
Equity Investors ,
Injunctions ,
Judicial Authority ,
Lenders ,
Liquidity ,
Non-Consensual Rights ,
Reorganizations ,
Scope of Authority ,
Settlement Agreements ,
Shareholders ,
Stern v Marshall ,
Third-Party Release Agrements ,
Transfer of Assets
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
1/7/2020
/ Affiliates ,
Appeals ,
Auction ,
Automatic Stay ,
Bankruptcy Code ,
Bid Solicitation ,
Buyers ,
Chapter 11 ,
Chapter 7 Conversions ,
Collateral ,
Commercial Bankruptcy ,
Damages ,
Default ,
Deficiency Judgments ,
Foreclosure ,
Good Faith ,
Inside Information ,
Investment Banks ,
Liquidation ,
Mortgage Lenders ,
Mortgage-Backed Securities ,
Mortgages ,
Repossess ,
Safe Harbors ,
Securities ,
Sellers ,
Trustees ,
Valuation
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
1/2/2020
/ Administrative Authority ,
Appeals ,
Bankruptcy Court ,
Business Judgment Rule ,
Commercial Bankruptcy ,
Debtors ,
Energy Projects ,
Energy Sector ,
Exclusive Jurisdiction ,
Executory Contracts ,
Federal Power Act ,
FERC ,
Filed-Rate Doctrine ,
Jurisdiction ,
PG&E ,
Power Purchase Agreements ,
Rejection Notices
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
10/11/2019
/ Appeals ,
Asbestos Litigation ,
Asbestos Trust Claims ,
Commercial Bankruptcy ,
Disinterested Parties ,
Fiduciary Duty ,
Future Claims ,
Judicial Appointments ,
Legal Representatives ,
Mass Tort Litigation ,
Nominations ,
Objections ,
Standard of Review ,
Trustees