We have previously written an OnPoint about the law concerning ownership of social media accounts in light of the explosive growth in the use of such media for commercial advertising, product development and customer...more
Two recent cases out of the Third Circuit and the Southern District of New York highlight some of the developing formulas US courts are using when engaging with foreign debtors. In a case out of the Third Circuit, Vertiv v....more
We have previously written an OnPoint about the law concerning ownership of social media accounts in light of the explosive growth in the use of such media for commercial advertising, product development and customer...more
When a majority of a company’s board approves a tender offer in good faith, can it still be avoided as an actually fraudulent transfer? Yes, says the Delaware Bankruptcy Court, holding that the fraudulent intent of a...more
Recently, in In re Moon Group Inc., a bankruptcy court said no, but the district court, which has agreed to review the decision on an interlocutory appeal, seems far less sure.
The bankruptcy court held that a lockbox...more
7/14/2023
/ Advances ,
Appeals ,
Bankruptcy Court ,
Chapter 11 ,
Chapter 7 ,
Credit Agreements ,
Debtors ,
Interlocutory Appeals ,
Lenders ,
Line of Credit ,
Liquidity ,
Notice of Default
The explosive growth in the use of social media for commercial advertising, product development and customer engagement, including via “influencers,” is well known and those accounts may have significant value. However, the...more
Your motion to serve the influencer defendant by tweet is hereby GRANTED. On May 2, 2023, in a class action lawsuit brought by FTX investors against social media influencers who allegedly promoted such investments and shared...more
A mortgage loan repurchase facility (more casually referred to as a “repo”) is a financing structure commonly utilized to finance mortgage loans. These facilities are utilized by both residential and commercial mortgage loan...more
Yes, says the Delaware Bankruptcy Court in the case of CII Parent, Inc., cementing the advice routinely given by bankruptcy counsel to borrowers in default. We always counsel borrower clients in default of the risk associated...more
The Second Circuit recently held that a non-party to an assumed executory contract is not entitled to a cure payment (although it may be so entitled if is a third-party beneficiary of the contract). The result would have...more
Lenders often attempt to limit what a borrower can do outside the ordinary course of business by negotiating contractual protections. Some of these provisions are designed to make the borrowers bankruptcy remote by, for...more
As market participants debate whether the recent bank shutdowns and the government-sponsored sale of Credit Suisse may be a precursor for another “Lehman Moment,” we are reminded of yet unresolved issues that followed the...more
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
Under Section 101(54) of the bankruptcy code, any means of disposing with an interest in property is considered a transfer, and therefore, under certain circumstances, may be avoided as a preference or fraudulent transfer. In...more
Judge David S. Jones of the United States Bankruptcy Court for the Southern District of New York (Bankruptcy Court) recently denied Chapter 15 recognition of a Cayman Islands proceeding (Cayman Proceeding) in which the Cayman...more
Section 303(i) of the Bankruptcy Code authorizes the court to award the debtor sanctions on account of an improper filing of an involuntary petition against it. But can a non-debtor third-party obtain such a relief? Yes, says...more
12/16/2022
/ Automatic Stay ,
Bad Faith ,
Bankruptcy Code ,
Bankruptcy Court ,
Chapter 11 ,
Federal Rules of Bankruptcy Procedure ,
Fees ,
Involuntary Bankruptcy ,
Non-Debtors ,
PA Supreme Court ,
Sanctions
The U.S. Court of Appeals for the First Circuit recently ruled in the Puerto Rico bankruptcy case that Fifth Amendment takings claims cannot be discharged or impaired by a bankruptcy plan. As a matter of first impression in...more
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
Emerging technologies, such as bitcoin, blockchain and non-fungible tokens (“NFTs”), have led to the creation of massive alternative investment vehicles, additional portfolio diversification as well as expansion of the...more
8/11/2022
/ Artificial Intelligence ,
Bitcoin ,
Blockchain ,
Cryptocurrency ,
Digital Assets ,
Distributed Ledger Technology (DLT) ,
Emerging Technologies ,
Non-Fungible Tokens (NFTs) ,
Proposed Amendments ,
Regulatory Reform ,
Uniform Commercial Code (UCC) ,
Uniform Law Commission (ULC)
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
Should a claim for appraisal rights brought by a former shareholder of a Chapter 11 debtor be subordinated under Section 510(b) of the Bankruptcy Code? According to the Bankruptcy Court for the District of Delaware, the...more
Trillions of dollars of securities are issued on the strength of bankruptcy remoteness and special purpose entities (“SPVs”) intended to be bankruptcy remote. These transactions generally involve hundreds of millions of...more
In a recent opinion, the Bankruptcy Court for the District of Maryland dealt with a conflict between the strong presumption in favor of enforcing arbitration agreements and the Bankruptcy Code’s emphasis on centralization of...more