Valuation is a critical and indispensable part of the bankruptcy process. How collateral and other estate assets (and even creditor claims) are valued will determine a wide range of issues, from a secured creditor's right to...more
The U.S. Bankruptcy Court for the Eastern District of North Carolina recently added some weight to the majority rule on an issue that has long divided bankruptcy and appellate courts. In In re Southern Produce Distributors,...more
9/1/2020
/ Adversary Proceedings ,
Asset Transfer ,
Avoidance ,
Bankruptcy Code ,
Bankruptcy Court ,
Chapter 11 ,
Commercial Bankruptcy ,
Disallowance Defense ,
Disgorgement ,
Equitable Subordination ,
Reorganizations
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
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 In re Rogers Morris, 2020 WL 1321894 (Bankr. N.D. Miss. Mar. 16, 2020), the U.S. Bankruptcy Court for the Northern District of Mississippi contributed to an existing split among the courts by joining the majority view in...more
8/31/2020
/ Automatic Stay ,
Bankruptcy Code ,
Bankruptcy Court ,
Bankruptcy Plans ,
Chapter 12 ,
Creditors ,
Equitable Subordination ,
Inequitable Conduct ,
Motion for Relief from Automatic Stay ,
Reorganizations ,
Section 553 ,
Setoff Rights
In 2019, the U.S. Court of Appeals for the Second Circuit made headlines when it ruled that creditors' state law fraudulent transfer claims arising from the 2007 leveraged buyout ("LBO") of Tribune Co. ("Tribune") were...more
8/31/2020
/ Bankruptcy Code ,
Commercial Bankruptcy ,
Covered Entities ,
Financial Institutions ,
Fraudulent Conveyance ,
Fraudulent Transfers ,
Leveraged Buyout ,
Limited Liability Company (LLC) ,
Merit Management Group v FTI Consulting ,
Preemption ,
Recapitalization ,
Safe Harbors
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
It is generally well understood that an "oversecured" creditor is entitled to interest and, to the extent provided for under a loan agreement, related fees and charges as part of its secured claim in a bankruptcy case....more
To prevent landlords under long-term real property leases from reaping a windfall for future rent claims at the expense of other creditors, section 502(b)(6) of the Bankruptcy Code caps the amount of a landlord's claims...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
Coronavirus Aid, Relief, and Economic Security (CARES) Act -
On March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136 (the "CARES Act"). The...more
6/4/2020
/ Bankruptcy Code ,
CARES Act ,
CFTC ,
Comment Period ,
Coronavirus/COVID-19 ,
Legislative Agendas ,
Paycheck Protection Program (PPP) ,
Proposed Amendments ,
Proposed Legislation ,
Relief Measures ,
SBA ,
Small Business Loans
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
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
6/2/2020
/ Appeals ,
Attorney's Fees ,
Bankruptcy Appellate Panel (BAP) ,
Bankruptcy Code § 524(a) ,
Bankruptcy Discharge Order ,
Chapter 7 ,
Civil Contempt Orders ,
Concurrent Litigation ,
Creditors ,
Dischargeable Debts ,
Injunctive Relief ,
Money Judgment ,
Reasonable Belief Test ,
Remand ,
Reversal ,
SCOTUS ,
Standard of Review ,
Statutory Violations ,
Strict Liability ,
Taggart v Lorenzen ,
Vacated
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
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
3/2/2020
/ Administrative Expenses ,
Administrative Priority ,
Bankruptcy Code ,
Bankruptcy Court ,
Bifurcation ,
Chapter 11 ,
Chapter 7 ,
Commercial Bankruptcy ,
Congressional Intent ,
Debtors ,
Gross Receipts Tax ,
Income Taxes ,
Legislative History ,
Tax 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 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
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
Except for disastrous fires that sparked the largest bankruptcy filing of the year, liabilities arising from the opioid crisis, the fallout from price-fixing, and corporate restructuring shenanigans, economic, market, and...more
2/26/2020
/ Bankruptcy Code ,
Bankruptcy Court ,
Chapter 15 ,
Chapter 9 ,
Commercial Bankruptcy ,
Corporate Counsel ,
Corporate Restructuring ,
Debtor-Creditor ,
FERC ,
Foreign Bankruptcies ,
Fraudulent Conveyance ,
Mission Product Holdings Inc v Tempnology LLC ,
Non-Consensual Rights ,
Oil & Gas ,
PG&E ,
Publicly-Traded Companies ,
Section 363 ,
Section 365 ,
Third-Party Release Agrements
Under the "single-satisfaction rule," although a bankruptcy trustee or a chapter 11 debtor-in-possession ("DIP") may seek to avoid and recover avoidable transfers of a debtor's property from more than one transferee, the...more
Chapter 11 Plan Distributions Are Not Collateral Covered by Intercreditor Agreement's Waterfall Provision -
In In re Energy Future Holdings Corp., 2019 WL 2535700 (3d Cir. June 19, 2019), a panel of the U.S. Court of...more
9/26/2019
/ Bankruptcy Code ,
Bankruptcy Reform ,
Chapter 11 ,
Chapter 15 ,
Commercial Bankruptcy ,
Corporate Restructuring ,
Cross-Border ,
Debt Restructuring ,
Debtors ,
Financial Institutions ,
Insolvency ,
Trump Administration
On August 23, 2019, President Trump signed into law four pieces of bankruptcy legislation designed to help financially distressed small businesses, disabled veterans, National Guard and reservists, and family farmers. Those...more
9/26/2019
/ Bankruptcy Code ,
Bankruptcy Plans ,
Bankruptcy Reform ,
Chapter 11 ,
Chapter 12 ,
Commercial Bankruptcy ,
National Guard ,
NDAA ,
New Legislation ,
Small Business ,
Trump Administration ,
Veterans ,
Veterans Administration
After discussions among judges from several jurisdictions, including Argentina, Australia, Bermuda, the British Virgin Islands, Canada, the Cayman Islands, England and Wales, Singapore, and the United States, at the initial...more
The Bankruptcy Code creates a rebuttable presumption that a proof of claim is prima facie evidence of the claim's validity and amount. Courts disagree, however, over whether that presumption also applies in a proceeding to...more
9/25/2019
/ Bankruptcy Code ,
Bankruptcy Court ,
Bifurcation ,
Chapter 11 ,
Chapter 13 ,
Chapter 7 ,
Evidentiary Standards ,
Federal Rules of Bankruptcy Procedure ,
Personal Property ,
Proof of Claims ,
Rebuttable Presumptions ,
Section 502
The scope of discovery available in a bankruptcy case concerning a debtor's conduct, property, financial condition, and related matters is so broad that it has sometimes been likened to a permissible "fishing expedition."...more