Joining the Eighth and Ninth Circuit Courts of Appeals, the Fifth Circuit Court of Appeals recently held that a debtor or trustee can sell its avoidance actions to third-party, non-estate representatives. See Briar Capital...more
In Spark Factor Design, Inc., et al. v. Hjelmeset (In re Open Medicine Institute, Inc.), No. 22-60017 (9th Cir. Oct. 30, 2023), the Ninth Circuit Court of Appeals recently found that a bankruptcy court has discretion of...more
A third-party injunction in a chapter 11 bankruptcy is generally used to protect a non-bankrupt entity from liability that is shared with, or derivative of, a bankrupt entity. Third-party injunctions are difficult to obtain...more
In MOAC Mall Holdings LLC v. Transform Holdco LLC, 134 S.Ct. 927, 937 (2023), the U.S. Supreme Court recently resolved a debate that has long divided Circuit Courts throughout the U.S: whether section 363(m) of the Bankruptcy...more
6/28/2023
/ 363 Sales ,
Appeals ,
Bankruptcy Code ,
Commercial Bankruptcy ,
Equitable Mootness ,
Good Faith ,
Jurisdiction ,
MOAC Mall Holdings LLC v Transform Holdco LLC ,
Mootness ,
SCOTUS ,
Section 363 ,
Split of Authority
Notwithstanding that cryptocurrency is generally in the cloud, crypto purists will say that cryptocurrency is as valuable as dollar bills. However, the recent bankruptcy filings of five major crypto companies, including...more
The ability of a chapter 11 going-concern debtor to be discharged from its prepetition liabilities is common place and not controversial. 11 U.S.C. § 1141(d). However, the ability of a debtor to release third-party...more
Justice Breyer of the Supreme Court previously recognized that a chapter 11 bankruptcy case can generally lead to the following results:
..reorganization through a confirmed chapter 11 plan, where a deal with creditors...more
Everyone is likely familiar with the chapter 11 bankruptcy of The Weinstein Company (“TWC“), an former film and production studio that previously produced and distributed featured films and premium television content...more
There is more than one way that a creditor of a bankrupt entity (or debtor) can directly prosecute its claims in bankruptcy. If the creditor is involved in prepetition litigation with the debtor, it could request relief from...more
7/8/2021
/ Automatic Stay ,
Bankruptcy Code ,
Bankruptcy Court ,
Commercial Bankruptcy ,
Creditors ,
Debtors ,
Defamation ,
Federal Rules of Bankruptcy Procedure ,
Intentional Infliction of Emotional Distress ,
Invasion of Privacy ,
Motion for Relief ,
Proof of Claims ,
State Law Claims
Bankruptcy cases involving commercial real estate present a multitude of problems. Those problems typically arise in the context of voluntary cases filed under chapter 11 of the Bankruptcy Code, 11 U.S.C. §§ 101-1532...more
7/7/2021
/ Automatic Stay ,
Bad Faith ,
Bankruptcy Plans ,
Chapter 11 ,
Collateral ,
Commercial Bankruptcy ,
Cramdown ,
Debt Restructuring ,
Distressed Properties ,
Mortgage Lenders ,
Mortgages ,
Secured Debt
According to the U.S. Energy Information Administration (EIA), the United States (U.S.) regular gasoline retail price as of the Monday before Labor Day fell to $2.22 per gallon this year, the lowest level for this time of...more
7/6/2021
/ Commercial Bankruptcy ,
Contract Terms ,
Downstream Agreements ,
Energy Information Association (EIA) ,
Energy Sector ,
Equity Financing ,
Financial Distress ,
Financing ,
Gas Prices ,
Liquidity ,
Midstream Contracts ,
Mineral Leases ,
Oil & Gas ,
Project Finance
Traditional avoidance actions under the Bankruptcy Code, i.e., preferences and fraudulent transfers, have laudable goals: (a) to provide equal treatment to creditors of an insolvent company and (b) to claw back otherwise...more
7/2/2021
/ Avoidance ,
Bankruptcy Code ,
Chapter 7 ,
Clawbacks ,
Commercial Bankruptcy ,
Construction Contracts ,
Federal Rule 12(b)(6) ,
Federal Rules of Civil Procedure ,
Fraudulent Transfers ,
Pleading Standards ,
UFTA
Amidst a global pandemic, there were plenty of interesting bankruptcy and restructuring events and changes that occurred in 2020. We saw new Bankruptcy Code amendments go into effect (through the Small Business Reorganization...more
1/5/2021
/ Bankruptcy Code ,
Breach of Duty ,
CARES Act ,
Chapter 11 ,
Chapter 7 ,
Class Action ,
Commercial Bankruptcy ,
Creditors ,
Debt Restructuring ,
Debtors ,
Fraudulent Transfers ,
Limited Liability Company (LLC) ,
Membership Interest ,
Reclamation ,
Small Business Reorganization Act of 2019 (SBRA) ,
Standing ,
WARN Act