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Pillsbury Winthrop Shaw Pittman LLP

Bankruptcy Court Splits the Baby on Real Estate Landlord’s Claim for Unpaid Postpetition Rent

A chapter 7 trustee-lessee’s failure to comply with postpetition, pre-rejection lease obligations does not automatically give the landlord an administrative expense claim, as some courts fashion alternative remedies on a...more

Jones Day

Business Restructuring Review Vol. 23 No. 4 | July–August 2024

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The U.S. Supreme Court handed down three bankruptcy rulings to finish the current Term. The decisions address the validity of nonconsensual third-party releases in chapter 11 plans, the standing of insurance companies to...more

Morgan Lewis

US Supreme Court: Nonconsensual Third-party Releases Impermissible Under Bankruptcy Code

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The US Supreme Court ruled in a landmark 5-4 decision on June 27, 2024 that nonconsensual third-party releases, as proposed in Purdue Pharma’s bankruptcy plan, were not permissible under the Bankruptcy Code. A nonconsensual...more

Jones Day

Fifth Circuit: Preference Claims Are Property of the Bankruptcy Estate that Can Be Sold

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A debtor's non-exempt assets (and even the debtor's entire business) are commonly sold during the course of a bankruptcy case by the trustee or a chapter 11 debtor-in-possession ("DIP") as a means of augmenting the bankruptcy...more

Patterson Belknap Webb & Tyler LLP

Seventh Circuit Addresses Scope of Section 546(e)

We have previously blogged about the section 546(e) defense to a trustee’s avoidance powers under the Bankruptcy Code. A trustee has broad powers to set aside certain transfers made by debtors before bankruptcy. See 11 U.S.C....more

Jones Day

Third Circuit: Bankruptcy Court Lacks Discretion to Deny Examiner Appointment Motion in Large Chapter 11 Cases

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The Bankruptcy Code provides that, in chapter 11 cases where the court does not find "cause" for the appointment of a trustee, the court "shall" appoint an examiner, upon a request from the Office of the U.S. Trustee (the...more

Proskauer Rose LLP

Bankruptcy Court Frowns on SmileDirect’s Dismissal Request

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There is a growing trend of bankruptcy courts approving structured dismissals of chapter 11 cases following a successful sale of a debtor’s assets under section 363 of the Bankruptcy Code. A structured dismissal is a...more

Dorsey & Whitney LLP

Fifth Circuit Holds Avoidance Actions Can Be Sold

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Joining the Eighth and Ninth Circuit Courts of Appeals, the Fifth Circuit Court of Appeals recently held that a debtor or trustee can sell its avoidance actions to third-party, non-estate representatives. See Briar Capital...more

Jones Day

The Year In Bankruptcy: 2023

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One year ago, we wrote that 2022 would be remembered in the corporate bankruptcy world for the "crypto winter" that descended in November 2022 with the spectacular collapse of FTX Trading Ltd., Alameda Research, and...more

Jones Day

Business Restructuring Review Vol. 23 No. 1 | January-February 2024

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One year ago, we wrote that 2022 would be remembered in the corporate bankruptcy world for the “crypto winter” that descended in November 2022 with the spectacular collapse of FTX Trading Ltd., Alameda Research, and...more

Jones Day

Second Circuit Adopts "Transfer-by-Transfer" Approach to Bankruptcy Code's Safe Harbor for Securities Contracts Payments

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The scope of the Bankruptcy Code's "safe harbor" shielding certain securities, commodity, or forward-contract payments from avoidance as fraudulent transfers has long been a magnet for controversy, particularly after the U.S....more

Jones Day

New York Bankruptcy Court: Setoff and Unjust Enrichment Cannot Be Asserted as Affirmative Defenses in Bankruptcy Avoidance...

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In a 2021 ruling, the U.S. Court of Appeals for the Second Circuit revived nearly 100 lawsuits seeking to recover fraudulent transfers made as part of the Madoff Ponzi scheme. In one of the latest chapters in that resurrected...more

Jones Day

Delaware Bankruptcy Court Imputes Officer's Fraudulent Intent to Corporation in Avoidance Litigation

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A powerful tool afforded to a bankruptcy trustee or a chapter 11 debtor-in-possession ("DIP") is the power to recover pre-bankruptcy transfers that are avoidable under federal bankruptcy law (or sometimes state law) because...more

Patterson Belknap Webb & Tyler LLP

Second Circuit Clarifies Tribune in New Decision

We have previously blogged about the section 546(e) defense to a trustee’s avoidance powers under the Bankruptcy Code. A trustee has broad powers to set aside certain transfers made by debtors before bankruptcy. See 11...more

Jones Day

New York Bankruptcy Court: Foreign Representative in Chapter 15 Case Need Not Be Appointed by Foreign Court

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In most cases seeking recognition of a foreign bankruptcy proceeding in the United States under chapter 15 of the Bankruptcy Code, the foreign debtor's "foreign representative" has been appointed by the foreign court or...more

Patterson Belknap Webb & Tyler LLP

Tenth Circuit Holds that Sovereign Immunity Does Not Limit Section 544 Claim

Section 544(b)(1) of the Bankruptcy Code enables a trustee to step into the shoes of a creditor and avoid a transfer “of an interest of the debtor in property” that an unsecured creditor could avoid under applicable state...more

Jones Day

Liquidating Chapter 11 Plan Confirmed Despite Provision Temporarily Enjoining Litigation Against Corporate Debtors

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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

Jenner & Block

Compilation of Recent Developments in Bankruptcy Law - April 2023

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Recent Developments in Bankruptcy Law - Cumulative, through April 2023 - 1. AUTOMATIC STAY - 1.1 Covered Activities - 1.1.a Court denies injunction against actions involving debtors’ affiliates. Shortly after filing...more

Jenner & Block

Recent Developments in Bankruptcy Law, January 2023

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1. AUTOMATIC STAY - 1.1 Covered Activities - 1.1.a Court declines to enjoin third party claims against the debtor’s jointly liable parent corporation. The debtor manufactured earplugs for many years. A major multinational...more

Blank Rome LLP

Subordination and Recharacterization

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This practice note discusses how a bankruptcy court may recharacterize documents that purport to create a loan transaction and determine that the transaction, despite labels, is something else—a transaction providing for a...more

Patterson Belknap Webb & Tyler LLP

Court Says Creditor Can Sue a Liquidating Trustee without Prior Permission

A bankruptcy court ruled that a creditor didn’t need to seek derivative standing to sue a liquidating trustee.  The creditor, himself a trustee of the debtor’s employee stock-option plan, had standing to sue without prior...more

Fox Rothschild LLP

Court Pulls Carpet Out from Under Trustee’s Preference Claim

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The Eleventh Circuit sided with the Third Circuit in finding that a creditor’s administrative claim under 11 U.S.C. § 503(b)(9) does not offset its new value defense pursuant to 11 U.S.C. § 547(c)(4). Auriga Polymers Inc. v....more

Shumaker, Loop & Kendrick, LLP

Business Bankruptcy: Executive Summary - Need to Know Bankruptcy Concepts - ICTF Magazine, December 2021

In this first part of his article, David sets the parameters for understanding U.S. bankruptcy concepts… According to the American Bankruptcy Institute, total commercial Chapter 11 filings in July 2021 decreased 62...more

Rivkin Radler LLP

Tax Distributions As Fraudulent Conveyances?

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The Calm Before? I’m confused. For better or worse, I’m pretty sure that I am not alone. Last week, in a letter addressed to the American people, forty-six of the fifty Republicans in the U.S. Senate indicated they...more

BCLP

Other People’s Property in Bankruptcy

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Nearly sixty years ago, Justice Hugo Black wrote that the Bankruptcy Act of 1898 “simply does not authorize a trustee to distribute other people’s property among a bankrupt’s creditors.” Pearlman v. Reliance Ins. Co., 371...more

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