Mark Douglas on Appeals

The Eleventh Circuit Revisits the Doctrine of Statutory Mootness in Bankruptcy Sales

The finality of sales of assets 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 stakeholders....more

1/28/2022 / 363 Sales , Appeals , Asset Purchaser , Bankruptcy Code , Commercial Bankruptcy , Creditors , Debtors , Dismissals , Equitable Mootness , Good Faith , Mootness , Sale of Assets , Statutory Interpretation

Eleventh Circuit Splits From Second Circuit on Finality of Chapter 15 Discovery Orders

Chapter 15 petitions seeking recognition in the United States of foreign bankruptcy proceedings have increased significantly during the more than 16 years since chapter 15 was enacted in 2005. Among the relief commonly sought...more

11/10/2021 / Appeals , Bankruptcy Code , Bankruptcy Court , Chapter 15 , Commercial Bankruptcy , Cross-Border , Discovery , Foreign Bankruptcies , Insolvency , Transfer of Assets , UNCITRAL

U.S. Supreme Court Update: Petitions Seek Review of Notable Bankruptcy Law Rulings

At a conference to be held at the end of the summer recess on September 27, 2021, the U.S. Supreme Court will consider whether to grant petitions seeking review during the new Term that begins on October 4 of three notable...more

9/21/2021 / Appeals , Chapter 11 , Commercial Bankruptcy , Equitable Mootness , Petition for Writ of Certiorari , Preemption , SCOTUS , Sovereign Immunity , Tortious Interference

New Appellate Court Ruling on Priority of Straddle-Year Taxes in Bankruptcy

A basic tenet of bankruptcy law, premised on the legal separateness of a debtor prior to filing for bankruptcy and the estate created upon a bankruptcy filing, is that prepetition debts are generally treated differently than...more

12/14/2020 / Administrative Expenses , Appeals , Appellate Courts , Bankruptcy Code , Bankruptcy Court , Chapter 7 , Commercial Bankruptcy , Corporate Taxes , Department of Justice (DOJ) , Income Taxes , Internal Revenue Code (IRC) , IRS , Tax Liability , Tax Returns

From the Top in Brief - June 2020

The U.S. Supreme Court recently handed down three rulings potentially impacting bankruptcy cases. Nunc Pro Tunc Relief - In Roman Catholic Archdiocese of San Juan v. Acevedo Feliciano, No. 18-921, 2020 WL 871715 (U.S....more

6/4/2020 / Appeals , Asset Seizure , Catholic Church , Chapter 11 , Federal Jurisdiction , Interim Remedies , Nunc Pro Tunc , Remand , Removal , Roman Catholic Archdiocese of San Juan Puerto Rico v Feliciano , SCOTUS , State Law Claims , Supreme Court of Puerto Rico , Trial Court Orders , Vacated

Post-Taggart, Ninth Circuit BAP Holds That "No Fair Ground of Doubt" Standard Applies to Automatic Stay Violations

In Taggart v. Lorenzen, 139 S. Ct. 1795 (June 3, 2019), the U.S. Supreme Court ruled that a bankruptcy court may hold a creditor in civil contempt for attempting to collect on a debt that has been discharged in bankruptcy "if...more

Oil and Gas Industry Update - Sabine Oil Not the Last Word on Treatment of Gathering Agreements in Bankruptcy

In a leading precedent handed down in 2018—Sabine Oil & Gas Corp. v. Nordheim Eagle Ford Gathering, LLC (In re Sabine Oil & Gas Corp.), 734 Fed. Appx. 64 (2d Cir. May 25, 2018)—the U.S. Court of Appeals for the Second Circuit...more

3/4/2020 / Appeals , Bankruptcy Code , Bankruptcy Court , Chapter 11 , Commercial Bankruptcy , Contract Terms , Covenants that Run With the Land , Debtors-in-Possession , Energy Sector , Executory Contracts , Gathering Agreements , Midstream Contracts , Mineral Exploration , Oil & Gas , Privity of Contract , Sabine Oil and Gas , Section 365

Private Equity Update: 1st Circuit Reverses Imposition of Pension Plan Withdrawal Liability

The Multiemployer Pension Plan Amendments Act of 1980 ("MPPAA") amended the Employee Retirement Income Security Act of 1974 ("ERISA") and the Internal Revenue Code to make "trade[s] or business[es]" that are under "common...more

3/2/2020 / Appeals , Business Formation , Commercial Bankruptcy , Controlled Groups , Employee Retirement Income Security Act (ERISA) , Investment Portfolios , Joint and Several Liability , Limited Liability Company (LLC) , Limited Partnerships , Multiemployer Pension Plan Amendments Act (MPPAA) , Multiemployer Plan , Partnership-in-Fact , PBGC , Pensions , Private Equity Funds , Sun Capital Partners , Withdrawal Liability

In Brief: Fifth Circuit Vacates Ruling that Make-Whole Premium Is Disallowed Unmatured Interest but Holds Firm on Bankruptcy Code...

In the July/August 2019 issue of the Business Restructuring Review, we discussed a landmark decision by the U.S. Court of Appeals for the Fifth Circuit in In re Ultra Petroleum Corp., 913 F.3d 533(5th Cir. 2019) ("Ultra I")....more

3/2/2020 / Appeals , Bankruptcy Code , Bankruptcy Court , Chapter 11 , Commercial Bankruptcy , Corporate Restructuring , Make-Whole Premium , Post-Petition Interest , Remand , Vacated

Stay Extended to Bar Litigation Against Chapter 15 Foreign Representatives but No Ruling on Extraterritoriality of Barton Doctrine

In McKillen v. Wallace (In re Irish Bank Resolution Corp. Ltd.), 2019 WL 4740249 (D. Del. Sept. 27, 2019), the U.S. District Court for the District of Delaware had an opportunity to consider, as an apparent matter of first...more

2/27/2020 / Adversary Proceedings , Appeals , Automatic Stay , Bankruptcy Code , Bankruptcy Court , Barton Doctrine , Breach of Duty , Chapter 15 , Court-Appointed Receivers , Debtors-in-Possession , Extraterritoriality Rules , Personal Liability , Trustees

From the Top in Brief - August 2019

On June 3, 2019, the U.S. Supreme Court ruled in Taggart v. Lorenzen, 139 S. Ct. 1795 (2019), that a bankruptcy court may hold a creditor in civil contempt for attempting to collect on a debt that has been discharged in...more

Seventh Circuit: Section 363(m) Does Not Moot but Instead Provides a Defense to an Appeal of an Unstayed Bankruptcy Asset Sale...

In Trinity 83 Dev., LLC v. ColFin Midwest Funding, LLC, 917 F.3d 599 (7th Cir. 2019), the U.S. Court of Appeals for the Seventh Circuit held that section 363(m) of the Bankruptcy Code does not moot an appeal involving a...more

8/20/2019 / Appeals , Article III , Asset Purchaser , Bankruptcy Code , Chapter 11 , Commercial Bankruptcy , Debtors , Equitable Mootness , Equitable Relief , Mootness , Sale of Assets , Section 363 , Standing

From the Top in Brief: Nonjudicial Foreclosure Not Regulated by the FDCPA

On March 20, 2019, the U.S. Supreme Court ruled unanimously in Obduskey v. McCarthy & Holthus LLP, 17-1307, 2019 WL 1264579 (U.S. Mar. 20, 2019), that nonjudicial foreclosure is not subject to regulation under the Fair Debt...more

6/19/2019 / Appeals , Debt Collection , Dismissals , FDCPA , Non-Judicial Foreclosures , Obduskey v McCarthy & Holthus LLP , Reaffirmation , SCOTUS

In Brief: On Remand, Momentive Bankruptcy Court Rules That Cramdown Notes Should Bear "Process Efficient" Market Interest Rate

In Momentive Performance Materials Inc. v. BOKF, NA (In re MPM Silicones, L.L.C.), 874 F.3d 787 (2d Cir. 2017), cert. denied, 138 S. Ct. 2653 (2018), the U.S. Court of Appeals for the Second Circuit affirmed a number of lower...more

6/19/2019 / Appeals , Bankruptcy Court , Chapter 11 , Chapter 13 , Commercial Bankruptcy , Cramdown , Debt Restructuring , Debtors , Debtors-in-Possession , First-Lien , Interest Rates , Make-Whole Premium , Noteholders , Remand , Secured Notes , Subordination , Trustees

Fifth Circuit Doubles Down on Statutory Mootness Approach to Bankruptcy Sales

In Tanguy v. West (In re Davis), 2018 WL 4232063 (5th Cir. Sept. 5, 2018), the U.S. Court of Appeals for the Fifth Circuit revisited the circumstances under which section 363(m) of the Bankruptcy Code moots an appeal of a...more

3/5/2019 / 363 Sales , Appeals , Article III , Bankruptcy Code , Chapter 11 , Commercial Bankruptcy , Debtors , Equitable Mootness , Standing

From the Top in Brief: U.S. Supreme Court Clarifies Whether Debts Based on False Statements Can Be Discharged in Bankruptcy

On June 4, 2018, the U.S. Supreme Court ruled in Lamar, Archer & Cofrin, LLP v. Appling, No. 16-1215, 138 S. Ct. 1752, 2018 WL 2465174 (U.S. June 4, 2018), that an individual debtor's false statement about a single asset, as...more

8/14/2018 / Adversary Proceedings , Appeals , Bankruptcy Code , Business Assets , Chapter 7 , Commercial Bankruptcy , Congressional Intent , Debtors , Dischargeable Debts , False Statements , Judgment Creditors , Lamar Archer & Cofrin LLP v Appling , Oral Communications , Reaffirmation , SCOTUS , Tax Returns

In Brief: Bankruptcy Court Rules That It Has Constitutional Authority to Grant Nonconsensual Releases in Chapter 11 Plan

In In re Millennium Lab Holdings II, LLC, 2017 BL 354864 (Bankr. D. Del. Oct. 3, 2017), the U.S. Bankruptcy Court for the District of Delaware ruled that it had the constitutional authority to grant nonconsensual third-party...more

11/22/2017 / Appeals , Chapter 11 , Commercial Bankruptcy , Creditors , False Claims Act (FCA) , Non-Consensual Rights , Proof of Claims , Racketeering , Remand , Section 363 , Stern v Marshall , Third-Party Release Agrements

Eroding the Majority Rule: Another Circuit Concludes That Lease Can Be Extinguished in Free-and-Clear Bankruptcy Sale

The ability of a trustee or chapter 11 debtor-in-possession ("DIP") to sell bankruptcy estate assets "free and clear" of competing interests in the property has long been recognized as one of the most important advantages of...more

10/4/2017 / 363 Sales , Appeals , Bankruptcy Code , Chapter 11 , Commercial Bankruptcy , Commercial Leases , Commercial Tenants , Debt Restructuring , Debtors-in-Possession , Free and Clear Transactions , Landlords , Mortgages , Resorts & Restaurants , Sale of Assets , Section 365 , Split of Authority , Tenants , Trustees

Second Circuit Affirms Bankruptcy Court’s Nullification of Chapter 15 Debtor’s Sale of Claim Due to Woefully Inadequate Price

In the March/April 2013 edition of the Business Restructuring Review, we reported on an opinion by the U.S. Bankruptcy Court for the Southern District of New York concluding that a chapter 15 debtor’s sale of claims against...more

8/16/2017 / 363 Sales , Abandonment , Appeals , Bankruptcy Court , Bernie Madoff , British Virgin Islands , Chapter 15 , Comity , Commercial Bankruptcy , Court Nullification , Debtors , Determination on Remand , Foreign Debt , Jurisdiction , Liquidation , Ponzi Scheme , Reaffirmation , Sale of Assets , SIPA

Two Recent Decisions Demonstrate Continued Disagreement Over Whether Economic Value or Face Amount of Liens Is Appropriate Metric...

The ability of a trustee or chapter 11 debtor in possession ("DIP") to sell bankruptcy estate assets "free and clear" of liens on the property under section 363(f) of the Bankruptcy Code has long been recognized as one of the...more

8/15/2017 / Appeals , Bankruptcy Code , Chapter 11 , Commercial Bankruptcy , Debt Restructuring , Debtors , Debtors-in-Possession , Free and Clear Transactions , Liens , Liquidation , Mortgages , Sale of Assets , Section 363 , Section 506 , Trustees

In Brief: Court Rules Against Lyondell Litigation Trustee on LBO Fraudulent Conveyance Claims

In Weisfelner v. Blavatnik (In re Lyondell Chemical Company), 2017 BL 131876 (Bankr. S.D.N.Y. Apr. 21, 2017), the bankruptcy court presiding over the chapter 11 case of Lyondell Chemical Company ("Lyondell") handed down a...more

6/3/2017 / Aiding and Abetting , Appeals , Bankruptcy Court , Breach of Duty , Burden of Proof , Commercial Bankruptcy , Fiduciary Duty , Fraudulent Conveyance , Loans , Merger Agreements , Mergers , Preferential Transfers , Restitution , Reversal , Trustees

Eleventh Circuit Addresses Difference Between Constitutional and Equitable Mootness

In Beem v. Ferguson (In re Ferguson), 2017 BL 101650 (11th Cir. Mar. 30, 2017), the U.S. Court of Appeals for the Eleventh Circuit addressed the distinction between constitutional mootness (a jurisdictional issue that...more

6/1/2017 / Appeals , Article III , Chapter 11 , Commercial Bankruptcy , Corporate Restructuring , Equitable Mootness , Mootness

U.S. Supreme Court Invalidates Non-Consensual Structured Dismissal Deviating from Bankruptcy Priority Scheme

The U.S. Supreme Court ruled on March 22, 2017, in Czyzewski v. Jevic Holding Corp., that without the consent of affected creditors, bankruptcy courts may not approve "structured dismissals" providing for distributions that...more

3/27/2017 / Absolute Priority Rule , Appeals , Bankruptcy Code , Bankruptcy Court , Chapter 11 , Commercial Bankruptcy , Consent , Czyzewski v Jevic Holding Corp , Priority Debt , Reversal , SCOTUS , Structured Dismissals , WARN Act

Mark Douglas

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