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Preference Defendants, Rejoice! Services Billed in a Lump Sum Can Be Allocated Per Diem, for Your New Value Defense

Preference actions are, for the most part, insanity. We won’t go on a tirade here. But recently, a ruling brings common sense to the “new value” defense....more

7th Circuit Disrupts Commercial Certainty in Lease Terminations; Landlords, We Hate That You Have to Read this Blog Post

There are many tenants that are, shall we say, “problem children.” They pay late, open late, breach, junk up your strip or building, threaten, the works. Sometimes, the landlord finds it easier just to reach a lease...more

Back From the Dead: Voluntarily Terminating a Distressed Tenant’s Lease May Give Rise to an Avoidance Action in Bankruptcy Against...

A recent decision by the U.S. Court of Appeals for the Seventh Circuit should prompt landlords to give careful consideration before entering into a lease termination agreement with a distressed tenant. In In re Great...more

UCC Standing Blocked in Recent Sabine Decision

What showing must creditors make to be granted the right to prosecute claims on behalf of the bankruptcy estate? Under the widely recognized standard established by the Second Circuit in In re STN Enterprises, a bankruptcy...more

Termination of a Commercial Lease May be an “Avoidable Transfer” in Bankruptcy, holds Seventh Circuit

In March 2016, the U.S. Court of Appeals for the Seventh Circuit ruled that a landlord may be liable to a debtor’s bankruptcy estate for the value of a lease the debtor terminated early, holding the termination may be an...more

“The ABC’S of ACB’S” – Arbitration Clauses in Bankruptcy Court

You’ve decided that your business will fare better if you put a mandatory arbitration clause into all of your contracts. You want to be fair to your counterparty, so you choose to arbitrate under the Federal Arbitration Act....more

Sun Capital Court Finds that Common Industry Practices Exposed PE Funds to Pension Plan Liabilities

A group of related private equity (“PE”) funds were found liable for a bankrupt portfolio company’s pension plan debts in the latest and most worrisome decision in the long-running Sun Capital Partners III, LP v. New England...more

Illinois Bankruptcy Court Nullifies Lender's Right To Block Debtor's Bankruptcy Filing

Often, as part of a forbearance agreement, a lender will obtain a provision requiring its consent to any subsequently filed bankruptcy; the theory being that if the business debtor subsequently defaults under its restructured...more

Ninth Circuit Rulings on Equitable Mootness in Transwest and Sunnyslope Impact Third Party Investors

The doctrine of equitable mootness provides that Chapter 11 reorganization plans will be deemed moot, and therefore not subject to appellate review, if a plan has been substantially consummated and granting appellate relief...more

Bankruptcy & Financial Restructuring/Finance Advisory: Second Circuit Rejects Potential Loophole in the Securities Contract Safe...

The Second Circuit Court of Appeals recently held that the “safe harbor” protections for securities contracts in Section 546(e) of the Bankruptcy Code prevented individual creditors’ state law constructive fraudulent transfer...more

The District of Massachusetts Calls for Review of Practice of “Surrendering” Underwater Property

For secured lenders, a consumer debtor’s chapter 13 bankruptcy filing can be a mixed bag. A chapter 13 bankruptcy petition often is utilized by a consumer debtor to avoid a foreclosure by allowing a debtor time (usually...more

Terminating a Distressed Tenant’s Lease? Plan Now to Defend a Possible Bankruptcy Avoidance Action Later

Landlords contemplating terminating a lease with a distressed tenant in advance of a possible tenant bankruptcy will want to consider carefully a recent decision from the Seventh Circuit. The decision, In re Great Lakes Quick...more

Ever-Expanding Safe Harbor Leaves Creditors’ Claims Stranded at Sea

Second Circuit holds that Bankruptcy Code preempts creditors’ state law constructive fraud claims. On March 29, 2016, the Second Circuit issued its opinion in In re Tribune Company Fraudulent Conveyance Litig.,...more

When Going “All In” Pays Off: The Third Circuit Upholds The Decision of the Bankruptcy Court in In re Trump Entertainment Resorts,...

In an appeal certified directly from the Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”) to the Court of Appeals, the Third Circuit issued a ruling upholding Judge Kevin Gross’s decision that a chapter...more

The Un-Bankruptcy: A Texas Receivership as an Alternative to Bankruptcy (and fourteen ways to appoint a receiver in The Lone Star...

Creditors seeking to exercise control over a borrower or collateral may utilize a number of remedies. They may seek a foreclosure or UCC sale, assignment for the benefit of creditors, file an involuntary bankruptcy petition...more

Casting a Wider Net: Court Finds Private Equity Funds Liable for ERISA Withdrawal Liability

On March 28, 2016, a district court in Massachusetts found two private equity funds (under the Sun Capital Partners, Inc. umbrella) jointly and severally liable for withdrawal liability imposed on one of its underlying...more

Breach of Fiduciary Duty Judgment May Be Dischargeable In Bankruptcy

It is not uncommon for a successful plaintiff in a breach of fiduciary duty case to have their collection efforts thwarted by a defendant filing for bankruptcy. The issue is whether the state court judgment is dischargeable...more

Sun Capital Court Finds Co-Investing Funds Part of Controlled Group and Liable for Portfolio Company’s Pension Liabilities

District Court finds affiliated funds acted in de facto partnership which controlled portfolio company; Decision may be significant in making private equity acquisition structuring choices. As we previously reported, in...more

Sun Capital: Private Equity Funds Liable for Portfolio Company’s Withdrawal Liability

District Court finds affiliated funds acted in de facto partnership which controlled portfolio company; Decision may be significant in making private equity acquisition structuring choices. On March 28, 2016, a Federal...more

Second Circuit Finds that Barclay’s Bought Lehman’s Assets Free and Clear of FirstBank’s Claims

On March 29, 2016, the Second Circuit Court of Appeals ruled that FirstBank Puerto Rico (“FirstBank”) could not recover from Barclays Capital Inc. (“Barclays”) the securities (“Securities”) pledged by it, in connection with a...more

No Déjà Vu – Lender Liability Claims Barred by Res Judicata Effect of Bankruptcy Sale Order

Put down your remotes for just a minute and let’s talk about res judicata. You remember that lovely Latin legal concept don’t you? Or maybe you prefer the more modern English version of “claim preclusion”? Either way it means...more

The Southern District of New York’s Norske Skog Decision: What Constitutes A Refinancing May Be In The Eye of The Beholder

The recent decision by the United States District Court for the Southern District of New York in Citibank, N.A. v. Norske Skogindustrier ASA could be an important consideration for future drafting and interpretation of debt...more

Seventh Circuit Holds that Pre-Bankruptcy Lease Terminations May Be Avoidable

In a case of first impression, the Seventh Circuit recently issued an opinion that may cause landlords and their advisors to re-evaluate the consequences of terminating a financially distressed commercial tenant’s lease prior...more

Seventh Circuit Holds That Termination of a Commercial Lease Prior to Tenant’s Bankruptcy May be an “Avoidable Transfer”

On March 11, 2016, the US Court of Appeals for the Seventh Circuit (the “Court”) ruled that a termination of lease that occurred prior to the tenant’s bankruptcy may be an “avoidable transfer” under title 11 of the United...more

"Recent Case Highlights Opportunity for Distressed Exploration and Production Companies"

On March 8, 2016, a bankruptcy court in the Southern District of New York issued a much-anticipated decision, In re Sabine Oil & Gas Corporation, that will undoubtedly influence the reorganization strategies of certain...more

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