Bankruptcy Conflict of Laws

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Lyondell Bankruptcy Court Holds That Safe Harbors Do Not Prohibit Creditors From Asserting State Law Constructive Fraudulent...

On January 14, 2014, Judge Robert E. Gerber of the United States Bankruptcy Court for the Southern District of New York in Weisfelner v. Fund 1. (In re Lyondell Chemical Co.), Adv. Proc. No. 10-4609 (REG), 2014 WL 118036...more

Bankruptcy Court defines limits of shareholder safe harbor in failed leveraged buyouts

An opinion issued in connection with the bankruptcy cases of Lyondell Chemical Company and its affiliates may have significant implications for shareholders who receive payments in connection with a leveraged buyout when the...more

Ontario Court of Appeal: License Suspensions for Failure to Pay Highway 407 Tolls Must be Lifted for Discharged Bankrupt

Highway 407 (the “407”), a highway creating a semi-circle around the Greater Toronto Area, is Ontario’s first toll highway. Rather than traditional toll booths, vehicles using the 407 are electronically monitored entering...more

When the FDCPA and the Bankruptcy Code Conflict: Which Controls?

As most lenders and banking litigators understand, courts construe the language of the Fair Debt Collection Protection Act (FDCPA) very broadly. As we have discussed in previous posts, an initial communication to collect a...more

Infobytes Special Alert: CFPB Issues Mortgage Servicing Rule Amendments And Guidance Addressing Conflicts With Bankruptcy And Debt...

On October 15, 2013, the Consumer Financial Protection Bureau (“CFPB”) issued an interim final rule amending certain provisions of its mortgage servicing rules and making technical changes to other January 2013 mortgage rules...more

Equityholder's Strategy for Shifting Tax Burdens to Creditors Upheld by Third Circuit

In re Majestic Star Casino, LLC, F.3d 736 (3rd Cir. 2013), the U.S. Court of Appeals for the Third Circuit broke from other courts by holding that S corporation status (or "qualified subchapter S subsidiary" or "QSub" status)...more

Second Circuit Determines the Relevant Date for Determining a Chapter 15 Debtor’s “COMI”

A. INTRODUCTION - Courts in the Southern District of New York and elsewhere have issued conflicting decisions regarding the appropriate time period to consider in determining a foreign debtor’s “center of its main...more

Rogers Towers: Caveat Creditor: Courts Split Regarding Abrogation of Absolute Priority Rule for Individual Chapter 11 Debtors

Although the 2005 BAPCPA amendments appeared to be a boon for creditors, at least with respect to Chapter 7 claims, individual Chapter 11 debtors immediately seized upon a perceived ambiguity in Congress’ language with...more

Ninth Circuit Holds That Debt Can Be Recharacterized as Equity

The US Court of Appeals for the Ninth Circuit recently resolved a split within the circuit when it held that a bankruptcy court has the power to recharacterize debt as equity. In In re Fitness Holdings International, Inc.,...more

An Identifiable Risk to Collateral Property That Is Used In The Marijuana Business

The legalization under state law of the marijuana business in Colorado through Amendment 20 (medical marijuana) and Amendment 64 (recreational marijuana) (Amendment 20 and Amendment 64 shall be referred to collectively as the...more

Ninth Circuit Widens Circuit Split Over Application of State or Federal Bankruptcy Law To Determine Whether Claims of...

In an important decision for private equity sponsors and other insiders who advance loans to their businesses, on April 30, 2013, the Ninth Circuit Court of Appeals in In re Fitness Holdings International confirmed that...more

Supreme Court Holds California’s Survival Statute Inapplicable To Delaware Corporation

Section 278 of the Delaware General Corporation in effect limits suits against dissolved corporations to a period of three years from dissolution. In contrast, Section 2010 of the California Corporations Code sets no time...more

United States of America v. Susquehanna Bank

Appellee's Brief

The Internal Revenue Service appealed a grant of summary judgment favoring Mr. Valkenet's client, Susquehanna Bank. The Maryland bankruptcy court granted the bank's indemnity deed of trust priority over IRS tax liens by...more

Circuit Split in Enforceability of Arbitration Clauses in Bankruptcy Left Unresolved

In a recent summary opinion, the Supreme Court denied certiorari review of a decision, Continental Insurance Co. v. Thorpe Insulation Co. (In re Thorpe Insulation Co.), 671 F.3d 1011 (9th Cir. 2012), where the Ninth Circuit...more

Supreme Court to Address Circuit Split Over 'Defalcation' Meaning

Originally published in The Legal Intelligencer on November 16, 2012. In a corporate system based in part on the separation of ownership and control, the relationship between principals and agents is riddled with agency...more

Bill on Bankruptcy: Who's to Blame for the Hostess Liquidation? [Video]

Nov. 21 (Bloomberg) -- What did the Hostess Brands Inc. labor unions and management know about the company's imminent failure and when did they know it? That's the first topic for discussion on this week's Bloomberg...more

Eighth Circuit Rules That a “Perpetual” Trademark Licensing Agreement Is an “Executory” Contract Subject to Rejection Under...

The United States Court of Appeals for the Eighth Circuit recently ruled that a perpetual, royalty-free, and exclusive trademark licensing agreement qualified as an executory contract subject to assumption or rejection under...more

Enforcement of Foreign Judgments - The Usual Rules Apply (no exception for insolvency)

This an important case from the English Supreme Court relating to the enforcement of foreign judgments in England. In the judgment, Lord Collins posed the following question, “Should there be a more liberal rule for...more

Twenty-Six Years Later, a Lubrizol Split by the Seventh Circuit

Chief Judge Frank Easterbrook of the Seventh Circuit recently created a split of authority regarding the rejection intellectual property licenses in bankruptcy by upholding a decision protecting a trademark licensee’s ability...more

"Rejection of Perpetual, Royalty-Free, Exclusive Trademark License Permitted by Eighth Circuit Ruling: Lewis Brothers Bakeries...

The U.S. Bankruptcy Code generally limits a Chapter 11 debtor-licensor’s ability to reject intellectual property licenses, but trademark licenses are not subject to such limitations. Trademark license agreements that are...more

Asbestos Alert: Corporations Formed Other than in California Which Have Dissolved May Be Able to Win Summary Judgment in...

Robinson v. SSW, Inc. California Court of Appeal, First District (September 21, 2012) Douglas Robinson died from mesothelioma and his family filed a wrongful death action. SSW, Inc., a Nebraska corporation, sought...more

The Sixth Circuit Splits From the Federal Circuit and Rules That Severance Payments Are Not Taxable as FICA Wages

On September 7, 2012, the Sixth Circuit held that certain types of severance payments (referred to as supplemental unemployment compensation or “SUB payments”) are not taxable wages under FICA. United States v. Quality...more

"Fifth Circuit Holds That Electricity Agreements Are Shielded From Avoidance Powers Under Bankruptcy Safe Harbor"

In its recent decision in Lightfoot v. MXEnergy Electric, Inc. (In re MBS Mgmt. Serv., Inc.), No. 11-30553, 2012 U.S. App. LEXIS 15995 (5th Cir. Aug. 2, 2012), the United States Court of Appeals for the Fifth Circuit ruled...more

Federal-Mogul Court Confirms That Bankruptcy Law Trumps Anti-Assignment Provisions in Insurance Policies

On May 1, 2012, the United States Court of Appeals for the Third Circuit in In re Federal–Mogul Global, Inc. confirmed that anti-assignment provisions in a debtor’s insurance liability policies are preempted by the Bankruptcy...more

Seventh Circuit Allows Trademark Licensees to Continue Using License After Rejection of Licensing Agreement

The Court of Appeals for the Seventh Circuit, in Sunbeam Products, Inc. v. Chicago American Manufacturing, LLC, recently issued a decision that holds contrary to the only other court of appeals that has addressed the issue —...more

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