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Foreign Trusts Present Tricky Eligibility Issues

In bankruptcy as in federal jurisprudence generally, to characterize something with the near-epithet of “federal common law” virtually dooms it to rejection. But, since “common law” is “[t]he body of law derived from judicial...more

Solicitor General Recommends Denial of Cert. in Tribune Despite Perceived Errors

In January 2020 we reported that, after the reconsideration suggested by two Supreme Court justices and revisions to account for the Supreme Court’s Merit Management decision, the Court of Appeals for the Second Circuit stood...more

Non-Bankruptcy Litigation in Bankruptcy Court

It seems to be a common misunderstanding, even among lawyers who are not bankruptcy lawyers, that litigation in federal bankruptcy court consists largely or even exclusively of disputes about the avoidance of transactions as...more

A Cogent Opposing View on SBRA Flexibility

I don’t know if Congress foresaw, when it enacted new Subchapter V of Chapter 11 of the Code in the Small Business Reorganization Act of 2019 (“SBRA”), that debtors in pending cases would seek to convert or redesignate their...more

Redesignation to Elect SBRA Is On a Roll

Our February 26 post reported on the first case dealing with the question whether a debtor in a pending Chapter 11 case may redesignate it as a case under Subchapter V, the new subchapter of Chapter 11 adopted by the Small...more

Controversy over SBRA’s Retroactivity

Our February 26 post entitled “SBRA Springs to Life” reported on the first case known to me that dealt with the issue whether a debtor in a pending Chapter 11 case should be permitted to amend its petition to designate it as...more

The Katz Principle Resurgent: State Sovereign Immunity Remains Abrogated in Bankruptcy

State governments can be creditors of individuals, businesses and institutions that are debtors in bankruptcy in a variety of ways, most notably as tax and fine collectors but also as lenders. They can also be debtors of...more

SBRA Springs to Life

We reported on the adoption of the Small Business Reorganization Act of 2019 (“SBRA”), with its 180-day runway to effectiveness, at the time of its adoption last year. The wait is over, and SBRA is springing to...more

Former Tribune Shareholders Still Merit Safe Harbor Upon Revision

We have noodled on the impact that the Supreme Court’s decision in Merit Management Group, LP v. FTI Consulting, Inc., which held that the safe harbor provided in Section 546(e) of the Bankruptcy Code does not apply when the...more

Continuing Doubt About the Opt-Out: Uncertainty Reigns Over Third-Party Releases

Whether because of, or in spite of, the proliferating case law it is hard to say, but the issues in, underlying and surrounding third-party releases in Chapter 11 plans just continue to arise with incessant regularity, albeit...more

News Flash Re: Fraudulent Transfer Law in New York

In our November 13 post entitled “500 Years and Counting: 16th Century Legal Principles Resonate in Modern Fraudulent Transfer Jurisprudence,” note 4 states in part: On May 8, 2019, the New York Legislature enacted the...more

500 Years and Counting: 16th Century Legal Principles Resonate in Modern Fraudulent Transfer Jurisprudence

Anglo-American legislators and judges have been dealing with the treatment of debtors’ transactions that adversely affect their creditors at least since the Sixteenth Century. In 1571, Parliament enacted the famous statute...more

Small Business Reorganization Act of 2019

In the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“2005 Act”), Congress amended the Bankruptcy Code and Title 28 of the U.S. Code to provide special rules and procedures for “small business debtors.” The...more

When Has A Trustee Exhausted His Section 550 “Single Satisfaction”?

A bankruptcy trustee exercising her or his avoidance powers under Chapter 5 of the Bankruptcy Code may seek to recover the avoidably transferred property (or its value) from “the initial transferee,” “the entity for whose...more

Trademark Licenses . . . Again (Update No. 8): The Supreme Court Decides! (Part 2)

Our May 22 post reported on the Supreme Court’s May 20 decision in Mission Product Holdings, Inc. v. Tempnology, LLC,[1] an 8-1 decision holding that the rejection of a trademark license in which the debtor is the licensor...more

Trademark Licenses . . . Again (Update No. 7): The Supreme Court Decides! (Part 1)

Our January 22, May 23, June 28, July 13, August 3, September 11 and October 29, 2018 and January 11, 2019 posts discussed the First Circuit’s January 12, 2018 decision in Mission Product Holdings, Inc. v. Tempnology, LLC....more

An Unresolved Issue at the Intersection of Consignment and Bankruptcy Law Decided

It always amazes me when, after more than a half-century of Uniform Commercial Code (“UCC”) jurisprudence, an issue one thinks would arise quite commonly appears never to have been decided in a reported case. Such an issue...more

A Gigantic Filing Error Provides an Opportunity to Expound the Earmarking Doctrine

Can another vain attempt to mitigate a $1.5 billion mistake provide the occasion for a thorough review of the doctrine of earmarking? It did for Southern District Bankruptcy Judge Martin Glenn in the long tail on the General...more

Trademark Licenses . . . Again (Update No. 6)

Our January 22, May 23, June 28, July 13, August 3, September 11 and October 29, 2018 posts discussed the First Circuit’s January 12, 2018 decision in Mission Product Holdings, Inc. v. Tempnology, LLC and the pending appeal...more

Another Gotcha for the Calendar: Section 365(d)(1)

Although it may be difficult to define precisely what an “executory contract” is (with the Bankruptcy Code providing no definition), I think most bankruptcy lawyers feel how the late Supreme Court Justice Potter Stewart...more

Trademark Licenses . . . Again (Update No. 5)

Our May 23, June 28, July 13, August 3 and September 11 posts discussed the First Circuit’s January 12 decision in Mission Product Holdings, Inc. v. Tempnology, LLC. and, most recently, the pending petition for certiorari. ...more

Stern Challenge to Third-Party Plan Releases Fails in Delaware

In hindsight, it seems inevitable that constitutional and other jurisdictional problems would arise when Congress, in enacting the Bankruptcy Reform Act of 1978, created impressive new powers and responsibilities for the...more

Trademark Licenses . . . Again (Update No. 4)

Our May 23, June 28, July 13 and August 3 posts discussed the First Circuit’s January 12 decision in Mission Product Holdings, Inc. v. Tempnology, LLC. and, most recently, the pending petition for certiorari. Since our last...more

Trademark Licenses . . . Again (Update No. 3)

Our July 13 post stated that the deadline for the respondent in Mission Product Holdings, Inc. v. Tempnology, LLC, 879 F.3d 389 (1st Cir. 2018), petition for cert. filed, No. 17-1657 (June 11, 2018), to submit a reply to the...more

The Assignment of Leases in Bankruptcy Free of Prohibitions, Restrictions and Conditions

In the era that preceded the Bankruptcy Reform Act of 1978 and its enactment of the Bankruptcy Code, bankruptcy estates often lost the value of leases and other contracts that could have been realized for creditors by use or...more

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