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Employees Face Uphill Battle in Holding Private Equity Firms Accountable under WARN Act

The United States District Court in Delaware recently issued a welcome decision for private equity firms whose portfolio companies run afoul of the Worker Adjustment and Retraining Notification Act (the “WARN Act”). In In re...more

Delaware Supreme Court Rules Mistakenly Filed UCC Termination Statement Is Effective in $1.5 Billion Secured Loan Transaction

Lenders need to exercise great caution when filing a UCC-3 termination statement. They must make sure that the list of security interests terminated is accurate and that the statement does not mistakenly include other,...more

Tax Litigation Update: Ninth Circuit Decision Provides Significant Support for Taxpayers Seeking to Discharge Tax Debt in...

On September 15, 2014, the United States Court of Appeals for the Ninth Circuit issued a landmark decision strongly favoring debtors seeking to discharge tax debt in bankruptcy. The case, Hawkins v. Franchise Tax Board...more

Another Bankruptcy Proofing Strategy Bites the Dust, or Does It?

In an effort to minimize the risk of loss in connection with a loan default, lenders often employ creative means to make it difficult, if not impossible, for a borrower to file bankruptcy....more

Second Circuit Fails to See the Comity in Chapter 15

In Krys v. Farnum Place, the Second Circuit ruled that, in a Chapter 15 ancillary proceeding, a SIPA claim is within the territorial jurisdiction of the United States and its sale by the Foreign Representative must be...more

Blog: California Bankruptcy Judge Rules that State Law Does Not Protect Pension Fund from Municipal Bankruptcies

On October 1, a bankruptcy judge ruled that the pension agreement between Stockton, California and Calpers, California’s massive state-run pension fund for public employees, is an executory contract that can be rejected in...more

Commercial Restructuring & Bankruptcy Alert - October 2014

In this issue: - Judge Says That Stockton, California Can Cut Pension Obligations - Third-Party Releases – Better Make Sure They Are Adequately Disclosed - Lawyers Who Sign Proofs of Claims for Clients...more

Subcontractors Can Still Perfect Mechanic’s Liens After Prime Contractors File Bankruptcy

One of the most common and effective ways for a subcontractor to secure a payment claim is to file a lien. Assuming any applicable, pre-lien notice requirements are satisfied, an unpaid subcontractor can lien a private...more

Appellate Court Notes

SC19151, SC19158 - Weiss v. Smulders - Plaintiff sued the defendant claiming it violated an oral agreement to form a new company by merging their existing companies as a joint venture to sell food products. After a...more

“Officer” Titles – Do They Confer Insider Status?

Insider status in U.S. bankruptcy carries with it significant burdens. Insiders face a one year preference exposure rather than the 90 day period applicable to non-insiders; insiders are by definition disinterested persons...more

Court Rules on Applicability of Make-Whole Premiums Upon Debt Acceleration

In the context of make-whole premiums, court decisions suggest that the applicability of the premium upon a refinancing in bankruptcy will be governed by the wording of the debt documents, and that if an automatic...more

New Jersey’s “Direct Action Statute” Is Not A Bar To Judgment Creditor’s Coverage Action

A New Jersey appellate court recently addressed that state’s “direct action statute,” concluding that it did not prevent judgment creditors from pursuing a coverage action arising out of an LMX reinsurance spiral. The...more

Sixth Circuit rules cows can be leased

Can you really lease a cow? - According to the Sixth Circuit, the answer is “yes.” Dairy cattle leasing is an increasingly popular method for producers to add to their herds while conserving capital for other purposes....more

The Art of Defending Preferential Transfers – Part Two: The Defenses

Learning how to defend a preferential transfer action is a particularly useful art for the credit professional. In Part One, we discussed the Bankruptcy Code’s specific requirements that must be established by the debtor or...more

Catching Judge Sontchi’s “Flurry of Opinions” Part 1 of 3

In This Issue: - In re: Energy Future Holdings Corp., et al, 14 -10979 (CSS) (CSC Trust Company of Delaware, as Indenture Trustee, v. Energy Future Intermediate Holdings Company LLC and EFIH Finance, Inc., Adv. Pro No:...more

Subcontractors Score a Victory in Federal Court

On August 27, in In re Heritage Consolidated, L.L.C., the Fifth Circuit Court of Appeals granted subcontractor’s lien rights to two oil and gas drilling contractors. The Court reversed a district court ruling which upheld a...more

Lease Termination: Do You Really Mean It?

A commercial landlord sought relief from the automatic stay so that it could complete prepetition eviction proceedings against the debtor. The debtor objected, arguing that it had a right to assume the lease. The case turned...more

Fourth Circuit Issues Reminder to Plan Proponents: Evidentiary Support is Required for Non-Debtor Releases

While a minority of circuits, such as the Ninth Circuit (see, e.g., In re Lowenschuss, 67 F.3d 1394 (9th Cir. 1995), have reasoned that bankruptcy courts lack the authority to approve non-debtor releases based on the language...more

Insurance Recovery Law - August 2014

“Contractual Liability” Exclusion Applies Only To An Insured’s Assumption of Another’s Liability - Why it matters: The Michigan Court of Appeals joined the majority of courts nationwide in holding that a...more

PREPA Bondholders Seek Summary Judgment Invalidating Puerto Rico’s Public Corporation Bankruptcy Legislation

On August 11, Franklin Funds and Oppenheimer Rochester Funds filed a second amended complaint, opposition to motion to dismiss and cross-motion for summary judgment in the litigation they previously filed in the United States...more

Bankruptcy Sales and Leases: “Free And Clear” May Not Be So “Free And Clear”

In approving the sale of a Chapter 11 debtor’s assets, a bankruptcy court found that a tenant of the debtor was entitled to continue in possession of the leased portion of the sold property for the remainder of its lease. ...more

Business Litigation Report -- July 2014

In This Issue: - Main Article: ..The Uniform Trade Secrets Act: Differences from the Common Law and from State to State - Noted With Interest: ..Enforceability of Settlement Terms in California...more

Genco Shipping Valuation Leaves Equity Interests Under Water

A chapter 11 plan can only be confirmed if it does not discriminate unfairly and is “fair and equitable” to any non-accepting impaired class. In this case, the issue was whether the debtor’s projected “reorganization value”...more

Georgia Supreme Court: Business Judgment Rule Valid, But Bank Officers Can Still Be Liable

In the context of Federal Deposit Insurance Corporation (FDIC) litigation against the former directors and officers of a failed bank, the Georgia Supreme Court has upheld the validity of the business judgment rule in the...more

Can a Receiver Retake Possession of the Property if a Bankruptcy is Dismissed?

QUESTION: I was appointed receiver for a business. Shortly after my appointment the owners put the business into bankruptcy and I turned over possession to the debtor. I was not discharged as receiver. I just learned that the...more

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