Bankruptcy trustees and chapter 11 debtors-in-possession ("DIPs") frequently seek to avoid fraudulent transfers and obligations under section 544(b) of the Bankruptcy Code and state fraudulent transfer or other applicable...more
10/3/2023
/ Abrogation ,
Bankruptcy Code ,
Bankruptcy Court ,
Bankruptcy Trustees ,
Chapter 11 ,
Debtors-in-Possession ,
Fraudulent Transfers ,
Government Entities ,
Internal Revenue Code (IRC) ,
IRS ,
Sovereign Immunity
A bankruptcy trustee's ability to avoid and recover pre-bankruptcy preferential transfers is essential to preserving or augmenting the estate for the benefit of all stakeholders. In 2019, however, the Bankruptcy Code was...more
7/28/2023
/ Affirmative Defenses ,
Avoidance ,
Bankruptcy Code ,
Bankruptcy Court ,
Bankruptcy Trustees ,
Chapter 11 ,
Chapter 7 ,
Commercial Bankruptcy ,
Debtors-in-Possession ,
Delaware ,
Due Diligence ,
Preferential Transfers
The ability of a bankruptcy trustee or chapter 11 debtor-in-possession ("DIP") to assume, assume and assign, or reject executory contracts and unexpired leases is an important tool designed to promote a "fresh start" for...more
The ability of a bankruptcy trustee or chapter 11 debtor-in-possession ("DIP") to assume, assume and assign, or reject executory contracts and unexpired leases is an important tool designed to promote a "fresh start" for...more
Whether a contract is "executory" such that it can be assumed, rejected, or assigned in bankruptcy is a question infrequently addressed by the circuit courts of appeals. The U.S. Court of Appeals for the Fifth Circuit...more
Bankruptcy and appellate courts disagree over the standard that should apply to a request for payment of a break-up fee or expense reimbursement to the losing bidder in a sale of the debtor’s assets outside the ordinary...more
Bankruptcy and appellate courts disagree over the standard that should apply to a request for payment of a break-up fee or expense reimbursement to the losing bidder in a sale of the debtor's assets outside the ordinary...more
Unlike professionals retained in a chapter 11 case by trustees, debtors, or official committees, the Bankruptcy Code provides little guidance regarding the appointment of a representative for "future claimants" in a chapter...more
FIFTH CIRCUIT WEIGHS IN ON BANKRUPTCY ASSET SALES FREE AND CLEAR OF LEASEHOLD INTERESTS -
The ability of a trustee or chapter 11 debtor-in-possession (“DIP”) to sell bankruptcy estate assets “free and clear” of competing...more
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
The ability of a bankruptcy trustee or chapter 11 debtor-in-possession ("DIP") to avoid fraudulent transfers is an important tool to promote the bankruptcy policies of equality of distribution among creditors and maximizing...more
The ability of a bankruptcy trustee or chapter 11 debtor-in-possession ("DIP") to assume, assume and assign, or reject executory contracts and unexpired leases is an important tool designed to promote a "fresh start" for...more
Whether a contract is "executory" such that it can be assumed, rejected, or assigned in bankruptcy is a question infrequently addressed by the circuit courts of appeals. The U.S. Court of Appeals for the Third Circuit...more
9/21/2021
/ 363 Sales ,
Bankruptcy Code ,
Bankruptcy Court ,
Chapter 11 ,
Commercial Bankruptcy ,
Contract Terms ,
Creditors ,
Debtors ,
Debtors-in-Possession ,
Executory Contracts ,
Film Industry ,
Materiality ,
Profits ,
Section 365 ,
Work Made For Hire Doctrine
In This Issue:
Tenant's Election to Retain Possession of Rejected Lease Premises Preserves Obligations Under Related Agreements -
Section 365(h) of the Bankruptcy Code provides special protection for tenants if a...more
Section 365(h) of the Bankruptcy Code provides special protection for tenants if a trustee or chapter 11 debtor-in-possession ("DIP") rejects an unexpired lease under which the debtor was the lessor by giving the tenant the...more
The ability of a bankruptcy trustee or chapter 11 debtor-in-possession ("DIP") to avoid fraudulent transfers is an important tool promoting the bankruptcy policies of equality of distribution among creditors and maximizing...more
2/9/2021
/ Bankruptcy Code ,
Bankruptcy Trustees ,
Chapter 7 ,
Debtors ,
Debtors-in-Possession ,
Fraudulent Transfers ,
Internal Revenue Code (IRC) ,
IRS ,
Look-Back Measurement Period ,
Section 548 ,
Statute of Limitations ,
Tax Avoidance ,
UFTA
The ability of a bankruptcy trustee or chapter 11 debtor-in-possession ("DIP") to obtain credit or financing during the course of a bankruptcy case is often crucial to the debtor's prospects for either maintaining operations...more
Postpetition financing provided by pre-bankruptcy shareholders or other "insiders" is not uncommon in chapter 11 cases as a way to fund a plan of reorganization and allow old shareholders to retain an ownership interest in...more
The ability of a bankruptcy trustee to avoid certain transfers of a debtor's property and to recover the property or its value from the transferees is an essential tool in maximizing the value of a bankruptcy estate for the...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
The practice of conferring "derivative standing" on official creditors' committees to assert claims on behalf of a bankruptcy estate in cases where the debtor or a bankruptcy trustee is unwilling or unable to do so is a...more
10/21/2020
/ Bankruptcy Code ,
Breach of Duty ,
Chapter 11 ,
Chapter 7 ,
Commercial Bankruptcy ,
Creditors ,
Debtors-in-Possession ,
Equitable Subordination ,
Limited Liability Company (LLC) ,
Real Party in Interest ,
Standing
The ability of a bankruptcy trustee or chapter 11 debtor-in-possession ("DIP") to sell assets of the bankruptcy estate "free and clear" of "any interest" in the property asserted by a non-debtor is an important tool designed...more
9/1/2020
/ Bankruptcy Code ,
Chapter 11 ,
Chapter 7 ,
Commercial Bankruptcy ,
Creditors ,
Debtors-in-Possession ,
Employee Retirement Income Security Act (ERISA) ,
Reorganizations ,
Section 363 ,
Successor Liability ,
Withdrawal Liability
With their doors closed by mandatory government shutdown orders in effect until most states started gradually reopening in May and June, many businesses have found it difficult or impossible to satisfy their lease obligations...more
The ability of a bankruptcy trustee or a chapter 11 debtor-in-possession ("DIP") to use "cash collateral" during the course of a bankruptcy case may be vital to the debtor's prospects for a successful reorganization. However,...more
6/8/2020
/ Bankruptcy Code ,
Bankruptcy Court ,
Business Judgment Rule ,
Chapter 11 ,
Collateral ,
Commercial Bankruptcy ,
Czyzewski v Jevic Holding Corp ,
Debtors-in-Possession ,
Mootness ,
Personal Property ,
Prohibited Transactions ,
Reorganizations ,
Section 363
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