In the service of the Bankruptcy Code’s goals of giving debtors a "fresh start" and ensuring that estate assets are fairly and equally distributed among similarly situated creditors, the Bankruptcy Code contains an array of...more
On April 3, 2018, the U.S. Supreme Court issued an order that, in light of its recent ruling in Merit Management Group LP v. FTI Consulting Inc., 138 S. Ct. 883, No. 16-784 (Feb. 27, 2018), the Court would defer consideration...more
6/8/2018
/ Avoidance ,
Bankruptcy Code ,
Chapter 11 ,
Commercial Bankruptcy ,
Debtors ,
Financial Institutions ,
Fraudulent Transfers ,
Intermediaries ,
Merit Management Group v FTI Consulting ,
Safe Harbors ,
SCOTUS ,
Section 546(e) ,
Split of Authority ,
Trustees
Even if a U.S. court has jurisdiction over a lawsuit involving foreign litigants, the court may conclude that a foreign court is better suited to adjudicate the dispute because either: (i) it would be more convenient, fair,...more
6/8/2018
/ Aiding and Abetting ,
Avoidance ,
Bankruptcy Code ,
Breach of Duty ,
Chapter 11 ,
Chapter 15 ,
Commercial Bankruptcy ,
Cross-Border ,
Debtors ,
Foreign Bankruptcies ,
Foreign Debt ,
Forum Non Conveniens ,
Forum Shopping ,
Fraudulent Transfers ,
Jurisdiction
The ability of a trustee or chapter 11 debtor-in-possession to avoid fraudulent or preferential transfers is a fundamental part of U.S. bankruptcy law. However, when a transfer by a U.S. entity takes place outside the U.S. to...more
4/20/2018
/ Avoidance ,
Bankruptcy Code ,
Bankruptcy Court ,
Chapter 11 ,
Commercial Bankruptcy ,
Cross-Border Transactions ,
Debtors ,
Extraterritoriality Rules ,
Fraudulent Transfers ,
Fraudulent Wire Transfers ,
Jurisdiction ,
Preferential Transfers
On February 27, 2018, the U.S. Supreme Court issued a highly anticipated ruling resolving a long-standing circuit split over the scope of the Bankruptcy Code’s "safe harbor" provision exempting certain securities transaction...more
4/19/2018
/ Avoidance ,
Bankruptcy Code ,
Chapter 11 ,
Commercial Bankruptcy ,
Financial Institutions ,
Fraudulent Transfers ,
Intermediaries ,
Merit Management Group v FTI Consulting ,
Safe Harbors ,
SCOTUS ,
Section 546(e) ,
Split of Authority
Courts disagree as to whether the amount that a bankruptcy trustee or chapter 11 debtor-in-possession ("DIP") can recover in fraudulent transfer avoidance litigation should be capped at the total amount of unsecured claims...more
2/5/2018
/ Acquisitions ,
Bankrtupcy Code Section 550 ,
Bankruptcy Code ,
Chapter 11 ,
Commercial Bankruptcy ,
Commercial Real Estate Contracts ,
Debtor-Creditor ,
Debtors-in-Possession ,
Fraudulent Transfers ,
Mergers ,
Trustees ,
UFTA
The initial year of the Trump administration colored much of the political, business, and financial headlines of 2017, both in the U.S. and abroad. Key administration-related developments in 2017 included U.S. withdrawal from...more
2/5/2018
/ Administrative Appointments ,
Banking Sector ,
Bankruptcy Code ,
Bitcoin ,
Chapter 11 ,
Chapter 15 ,
Climate Change ,
Commercial Bankruptcy ,
Creditors ,
Cross-Border ,
Cryptocurrency ,
Cybersecurity ,
Debt Restructuring ,
EU ,
Financial Institutions ,
Fiscal Year ,
Germany ,
Global Economy ,
Insolvency ,
International Tax Issues ,
Legislative Agendas ,
NAFTA ,
Natural Disasters ,
Natural Resources ,
Net Neutrality ,
Netherlands ,
Oil & Gas ,
Pensions ,
Puerto Rico Oversight Management and Economic Stability Act (PROMESA) ,
Regulatory Agenda ,
Regulatory Oversight ,
Russia ,
Singapore ,
Sovereign Debt ,
Trump Administration
In Varela v. AE Liquidation, Inc. (In re AE Liquidation, Inc.), 866 F.3d 515 (3d Cir. 2017), the U.S. Court of Appeals for the Third Circuit became the sixth circuit court of appeals to rule that a "probability standard"...more
11/27/2017
/ Chapter 11 ,
Chapter 7 ,
Corporate Counsel ,
Corporate Sales Transactions ,
Department of Labor (DOL) ,
Employer Liability Issues ,
Foreseeability ,
Hiring & Firing ,
Insolvency ,
Layoff Notices ,
Layoffs ,
Liquidation ,
Natural Disasters ,
Notice Requirements ,
Popular ,
Russia ,
WARN Act
In Clark’s Crystal Springs Ranch, LLC v. Gugino (In re Clark), 692 Fed. Appx. 946, 2017 BL 240043 (9th Cir. July 12, 2017), the U.S. Court of Appeals for the Ninth Circuit ruled that: (i) the remedy of "substantive...more
In In re Millennium Lab Holdings II, LLC, 2017 BL 354864 (Bankr. D. Del. Oct. 3, 2017), the U.S. Bankruptcy Court for the District of Delaware ruled that it had the constitutional authority to grant nonconsensual third-party...more
11/22/2017
/ Appeals ,
Chapter 11 ,
Commercial Bankruptcy ,
Creditors ,
False Claims Act (FCA) ,
Non-Consensual Rights ,
Proof of Claims ,
Racketeering ,
Remand ,
Section 363 ,
Stern v Marshall ,
Third-Party Release Agrements
In Assured Guaranty Corp. v. Fin. Oversight & Mgmt. Bd. for Puerto Rico, 872 F.3d 57 (1st Cir. 2017), the U.S. Court of Appeals for the First Circuit ruled that section 1109(b) of the Bankruptcy Code gave an unsecured...more
The ability of a trustee or chapter 11 debtor-in-possession ("DIP") to sell bankruptcy estate assets "free and clear" of competing interests in the property has long been recognized as one of the most important advantages of...more
10/4/2017
/ 363 Sales ,
Appeals ,
Bankruptcy Code ,
Chapter 11 ,
Commercial Bankruptcy ,
Commercial Leases ,
Commercial Tenants ,
Debt Restructuring ,
Debtors-in-Possession ,
Free and Clear Transactions ,
Landlords ,
Mortgages ,
Resorts & Restaurants ,
Sale of Assets ,
Section 365 ,
Split of Authority ,
Tenants ,
Trustees
The next few years are expected to see a significant increase in the volume of bankruptcy cases filed by health care providers. Thus far in 2017, the number of bankruptcies in health care-related sectors, including hospitals,...more
10/3/2017
/ Absolute Priority Rule ,
Affordable Care Act ,
Automatic Stay ,
Bundled Services ,
Chapter 11 ,
Chapter 7 ,
Chapter 9 ,
Commercial Bankruptcy ,
Debtors ,
Fee-for-Service ,
Fiduciary Duty ,
Health Care Providers ,
Healthcare Costs ,
Lenders ,
Medicaid ,
Medical Records ,
Medicare ,
Medicare Provider Agreements ,
Shareholders ,
Trustees
The ability to avoid fraudulent or preferential transfers is a fundamental part of U.S. bankruptcy law. However, when a transfer by a U.S. entity takes place outside the U.S. to a non-U.S. transferee—as is increasingly common...more
10/2/2017
/ Avoidance ,
Bankruptcy Code ,
Bankruptcy Court ,
Chapter 11 ,
Commercial Bankruptcy ,
Cross-Border Transactions ,
Debtors ,
Extraterritoriality Rules ,
Fraudulent Transfers ,
Fraudulent Wire Transfers ,
Jurisdiction ,
Preferential Transfers ,
Trustees ,
Wire Transfers
In Schoenmann v. Bank of the West (In re Tenderloin Health), 849 F.3d 1231 (9th Cir. 2017), a divided panel of the U.S. Court of Appeals for the Ninth Circuit recently addressed as a matter of apparent first impression...more
In Feltman v. Noor Staffing Grp., LLC (In re Corp. Res. Servs. Inc.), 564 B.R. 196 (Bankr. S.D.N.Y. 2017), the bankruptcy court considered whether section 553 of the Bankruptcy Code creates a right of setoff when no such...more
The ability of a trustee or chapter 11 debtor in possession ("DIP") to sell bankruptcy estate assets "free and clear" of liens on the property under section 363(f) of the Bankruptcy Code has long been recognized as one of the...more
8/15/2017
/ Appeals ,
Bankruptcy Code ,
Chapter 11 ,
Commercial Bankruptcy ,
Debt Restructuring ,
Debtors ,
Debtors-in-Possession ,
Free and Clear Transactions ,
Liens ,
Liquidation ,
Mortgages ,
Sale of Assets ,
Section 363 ,
Section 506 ,
Trustees
In Beem v. Ferguson (In re Ferguson), 2017 BL 101650 (11th Cir. Mar. 30, 2017), the U.S. Court of Appeals for the Eleventh Circuit addressed the distinction between constitutional mootness (a jurisdictional issue that...more
Among the required elements of a claim to avoid a preferential transfer under section 547(b) of the Bankruptcy Code is that, if the creditor-transferee were permitted to retain a pre-bankruptcy payment, it would end up being...more
5/31/2017
/ Bankruptcy Code ,
Chapter 11 ,
Chapter 7 ,
Creditors ,
Debtors ,
Executory Contracts ,
Managed Custody Accounts (MCAs) ,
Preferences ,
Preferential Transfers ,
Section 365 ,
Trustees
The U.S. Supreme Court ruled on March 22, 2017, in Czyzewski v. Jevic Holding Corp., that without the consent of affected creditors, bankruptcy courts may not approve "structured dismissals" providing for distributions that...more
3/27/2017
/ Absolute Priority Rule ,
Appeals ,
Bankruptcy Code ,
Bankruptcy Court ,
Chapter 11 ,
Commercial Bankruptcy ,
Consent ,
Czyzewski v Jevic Holding Corp ,
Priority Debt ,
Reversal ,
SCOTUS ,
Structured Dismissals ,
WARN Act