Bankruptcy Civil Remedies

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Breach of Fiduciary Duty (and Related) Claims Are Not Easily Defeated: A Case Study in Motions for Judgment on the Pleadings

Just what must be alleged for claims for breach of fiduciary duty to proceed past initial pleadings and into meaningful fact development? In a recent decision, the United States Bankruptcy Court for the Eastern District of...more

Delaware Bankruptcy Court Issues Important Guidelines Concerning Payment of Indenture Trustee's Professional Fees

In Nortel Networks, Inc., Case No. 09-0138(KG), Doc. No. 18001 (March 8, 2017), the Delaware Bankruptcy Court ruled on the objections of two noteholders who asked the Court to disallow more than $4.4 million of the $8.1...more

Case Dismissed! Do Not Pass Go, Do Not Collect Your $1 Million

Following dismissal of a bankruptcy case, what is the bankruptcy court’s authority to enforce an award for attorneys’ fees? While you might think that the bankruptcy court retains authority to enforce its own orders, a recent...more

Does “Act” Mean Also a Failure to Act?

No, says the U.S. Court of Appeals for the Tenth Circuit in In re Cowen, adopting the minority rule and parting ways with four other Courts of Appeals. The automatic stay provision of the Bankruptcy Code addressed in Cowen...more

Paid Rejection: Bankruptcy Court Allows Professional Fees Despite Trustee’s Flawed Strategy

Can a bankruptcy court deny fees requested by a professional simply because her client chose a poor strategy? The Bankruptcy Court for the District of Idaho recently rejected such a notion, holding that an accounting...more

Court Rejects Lender’s Objection to Payment of Debtor’s Counsel’s Fees and Expenses from Pre-Petition Retainer

In a decision rendered on December 30, 2016, the bankruptcy court for the Southern District of Florida (the “Court”) addressed the debtor’s counsel’s interim application for an award of fees and expenses for services rendered...more

Recent Cases Restrict Issuers' Ability to Avoid Paying Premiums

Indentures governing high yield and investment grade notes typically provide for a make-whole or other premium to be paid if the issuer redeems the underlying notes prior to maturity. The premiums are intended to compensate...more

How to enforce adjudication decisions and deal with insolvency

Adjudications on the increase - Anecdotal evidence suggests that adjudications are still on the increase. This increase is supported by the statistics in the Adjudication Society's 15th report, which shows a 5 per cent...more

Seeking Punitive Damages Can Expand Scope of Discovery

As litigators are well aware, a lawsuit frequently begins and ends with discovery. Complaints must be carefully worded and allegations carefully chosen in order to maximize success in developing a record and in exploring...more

PACA Liens: A New Cloud on Title?

The Perishable Agricultural Commodities Act (PACA) was passed by Congress in 1930 to protect agricultural produce suppliers from unscrupulous vendors who refused to pay the suppliers for their goods. PACA contains language...more

How does a creditor obtain relief from a receivership stay order?

QUESTION: I am a receiver in a case where the court issued an injunction staying all litigation and creditor action against the entity and assets in receivership. A secured creditor wants to foreclose on one of the estate’s...more

Post-Petition Lenders: Does Your Super-Priority Claim Trump Post Conversion Expenses?

Key points: While DIP Lenders rightfully negotiate for super-priority administrative expenses which trump post conversion chapter 7 administrative expenses, these provisions are not uniformly enforced. DIP...more

Executive Compensation Under Section 503(c) – The Sports Authority Story

A recent, and highly publicized, decision from the case formerly known as Sports Authority, In re TSA WD Holdings, Inc. et al., Case No. 16-10527 (MFW), Bankr. D. Del. (Docket #2863, Aug. 31, 2016), allowed the defunct...more

Lehman Brothers International (Europe) (In Administration) – Two Recent Judgments

Last week, the High Court ruled on the meaning of “Default Rate” in the 1992 and 2002 ISDA Master Agreements (together, the “ISDA Master Agreements”). Whilst the decision addresses a multitude of issues, perhaps the most...more

Appellate Court Notes

Supreme Court Advance Release Opinions: - SC19389 - State v. Edmonds - SC19389 Concurrence - State v. Edmonds - SC19389 Concurrence - State v. Edmonds - SC19389 Dissent - State v. Edmonds...more

The Reef of Hanjin’s Woe: Will Chapter 15 Unlash Hanjin’s Sailors from the Mast?

On September 9, 2016, Hanjin Shipping Co. won a ruling protecting its assets in the U.S. against creditors, while the shipping line proceeds with its reorganization in South Korea. Hanjin filed for relief under Chapter 15 of...more

Producers Beware: What happens when your movie distributor files bankruptcy?

The Issue - There has been written a plethora of articles about Bankruptcy Code §365(n) regarding the rights of parties to license agreements when the licensor files a bankruptcy and rejects a license agreement....more

Missouri Commercial Receivership Act Creates a New Statutory Scheme Which Presents a More Robust Remedy

The Missouri Commercial Receivership Act (MCRA), passed by the Missouri legislature and just signed into law by Governor Nixon, becomes effective Aug. 28, 2016. It expands, clarifies and fleshes out the existing minimal...more

One of the Largest Member Clubs in Singapore Is Liquidated

California Fitness’s closure has left many consumers who have purchased prepaid packages without any remedies. On 20 July, California Fitness, which was once fronted by action movie star Jackie Chan, announced that it...more

Court of Appeal decides that full losses flow from a second negligent valuation on a refinance regardless of whether the second...

In Tiuta International Limited (in Liquidation) v. De Villiers Surveyors Limited [2016] EWCA Civ 661, the Court of Appeal allowed an application to set aside summary judgment after considering the correct application of the...more

General Motors: Protection Granted in Section 363 Sale Orders is Only as Good as the Notice Given

In a recent decision by the U.S. Court of Appeals for the Second Circuit in the General Motors case, the court held certain claimants were not afforded procedural due process with respect to the § 363 sale of General Motor...more

Ex Parte Attachment, and Priority, Reinstated to First in Time Creditor

In Estate of Summers v. Nisbet, the Maine Supreme Judicial Court reinforced the first in time, first in right nature of attachment and trustee process under Maine law. Attachment and trustee process are powerful enforcement...more

Bankruptcy Court Rules Chapter 13 Debtors Must Assume or Reject Leases in 120 Days

In a recent decision from the Bankruptcy Court for the District of Maine, In re Cho, the Court ruled that 11 U.S.C. § 365(d)(4)(A) applies to debtors in Chapter 13 cases. In this case, the debtors operated a dry cleaning...more

How Reporting a Crime May Subject You to Sanctions

You are a creditor and your loan is secured by personal property, let’s say equipment. The borrower recently filed for bankruptcy protection. You receive a phone call from a friend advising you that someone has a moving...more

Bankruptcy Pitfalls: How an infringer's bankruptcy could impact your IP rights

As a patent owner, you have the exclusive right to prevent others from making, using, selling, offering for sale, or importing your claimed invention into the United States. You also have the ability to recover damages from a...more

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