Section 546(e) of the Bankruptcy Code’s “safe harbor” preventing avoidance in bankruptcy of certain securities, commodity, or forward-contract payments has long been a magnet for controversy. Several noteworthy court rulings...more
10/3/2023
/ Article III ,
Bankruptcy Code ,
Chapter 11 ,
Chapter 7 ,
Commercial Bankruptcy ,
Corporate Restructuring ,
Fraudulent Transfers ,
Safe Harbors ,
Securities Contracts ,
Sovereign Immunity ,
Standing
Federal appellate courts have traditionally applied a "person aggrieved" standard to determine whether a party has standing to appeal a bankruptcy court order or judgment. However, this standard, which requires a direct,...more
Chapter 15 Update: U.S. Bankruptcy Court Refuses To Enforce Order Approving Indonesian Debt Restructuring Plan Due To Third-party Releases -
Cross-border bankruptcy cases filed in the U.S. under chapter 15 of the...more
7/23/2021
/ Article III ,
Bankruptcy Court ,
Chapter 11 ,
Chapter 15 ,
Comity ,
Commercial Bankruptcy ,
Foreign Bankruptcies ,
Restructuring ,
Safe Harbors ,
Setoff Rights ,
Sharia Law ,
Standing ,
Subordination Agreement ,
Third-Party ,
Tolling
In In re Fencepost Productions Inc., 2021 WL 1259691 (Bankr. D. Kan. Mar. 31, 2021), the U.S. Bankruptcy Court for the District of Kansas recently addressed the enforceability of a provision in a pre-bankruptcy subordination...more
In Hafen v. Adams (In re Hafen), 616 B.R. 570 (B.A.P. 10th Cir. 2020), a bankruptcy appellate panel from the Tenth Circuit ("BAP") held that the bankruptcy court is the only court with subject-matter jurisdiction to decide...more
12/17/2020
/ Article III ,
Bankruptcy Appellate Panel (BAP) ,
Bankruptcy Code ,
Bankruptcy Court ,
Chapter 11 ,
Chapter 7 ,
Debtors-in-Possession ,
Exclusive Jurisdiction ,
Fraudulent Transfers ,
Standing ,
Statutory Authority ,
Subject Matter Jurisdiction
Appointment of PROMESA Financial Oversight Board Was Constitutional -
In Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC, No. 18-1334, 590 U.S. ___ (June 1, 2020), the Supreme Court...more
8/31/2020
/ Appointments Clause ,
Article III ,
Aurelius Investment LLC v Puerto Rico ,
Commercial Bankruptcy ,
Congressional Authority ,
Constitutional Challenges ,
Creditors ,
De Facto Officer Doctrine ,
Debtors ,
Extraterritoriality Rules ,
Financial Oversight and Management Board (Oversight Board) ,
Financial Oversight and Management Board for Puerto Rico v Aurelius Investment LLC ,
Officers of the United States ,
Puerto Rico ,
Puerto Rico Oversight Management and Economic Stability Act (PROMESA) ,
SCOTUS
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
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
In Bennett v. Jefferson County, Alabama, 899 F.3d 1240 (11th Cir. 2018), a panel of the U.S. Court of Appeals for the Eleventh Circuit ruled as a matter of first impression that the doctrine of equitable mootness applies in...more
12/24/2018
/ Article III ,
Bankruptcy Code ,
Chapter 9 ,
Due Process ,
Equitable Mootness ,
Jurisdiction ,
Municipal Bankruptcy ,
Reorganizations ,
Standing ,
State Constitutions ,
State Sovereignty
On September 21, 2018, the U.S. District Court for the District of Delaware affirmed a bankruptcy court's ruling that it had the constitutional authority to grant nonconsensual third-party releases in an order confirming the...more
12/21/2018
/ Article III ,
Chapter 11 ,
Commercial Bankruptcy ,
Counterclaims ,
Cramdown ,
Jurisdiction ,
Lack of Authority ,
Proof of Claims ,
Racketeering ,
Section 363 ,
Shareholders' Agreements ,
State Law Claims
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