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Recent Developments in Cross-Border Insolvency Cases

Two recent cases out of the Third Circuit and the Southern District of New York highlight some of the developing formulas US courts are using when engaging with foreign debtors. In a case out of the Third Circuit, Vertiv v....more

Imputation of a Sole Director’s Fraudulent Intent to the Company

When a majority of a company’s board approves a tender offer in good faith, can it still be avoided as an actually fraudulent transfer? Yes, says the Delaware Bankruptcy Court, holding that the fraudulent intent of a...more

12/18/2023  /  Bankruptcy Court , Debtors , Fraud , Investors

Are Lockbox Lenders Subject to Implied Duties?

Recently, in In re Moon Group Inc., a bankruptcy court said no, but the district court, which has agreed to review the decision on an interlocutory appeal, seems far less sure. The bankruptcy court held that a lockbox...more

Social Media is Everywhere, But Who Owns these Social Media Accounts Anyway?

The explosive growth in the use of social media for commercial advertising, product development and customer engagement, including via “influencers,” is well known and those accounts may have significant value. However, the...more

So, You Exercised Your Proxy Rights Pre-Petition, Are You Good?

Yes, says the Delaware Bankruptcy Court in the case of CII Parent, Inc., cementing the advice routinely given by bankruptcy counsel to borrowers in default. We always counsel borrower clients in default of the risk associated...more

Third Circuit Finds That Prepetition Option Termination Is Not Transfer

Under Section 101(54) of the bankruptcy code, any means of disposing with an interest in property is considered a transfer, and therefore, under certain circumstances, may be avoided as a preference or fraudulent transfer. In...more

Recent Bankruptcy Court Ruling Defines Limits of Foreign Proceeding

Judge David S. Jones of the United States Bankruptcy Court for the Southern District of New York (Bankruptcy Court) recently denied Chapter 15 recognition of a Cayman Islands proceeding (Cayman Proceeding) in which the Cayman...more

Non-Debtor Awarded Sanctions for an Improper Filing of an Involuntary Petition

Section 303(i) of the Bankruptcy Code authorizes the court to award the debtor sanctions on account of an improper filing of an involuntary petition against it. But can a non-debtor third-party obtain such a relief? Yes, says...more

Avoiding an Out-of-Court Restructuring May Breach Fiduciary Duties

Introduction Under Delaware law, the board of directors of an insolvent company has wide latitude to pursue good-faith strategies to maximize the value of the firm. Trenwick Am. Litig. Tr. v. Ernst & Young, L.L.P., 906 A.2d...more

Automatic Stay Must Give Way: Bankruptcy Court Lets Non-Core Claims Be Decided Through Arbitration

In a recent opinion, the Bankruptcy Court for the District of Maryland dealt with a conflict between the strong presumption in favor of enforcing arbitration agreements and the Bankruptcy Code’s emphasis on centralization of...more

The Third Circuit Seeks to Clarify Sovereign Immunity in Bankruptcy

The application of sovereign immunity principles in bankruptcy cases has vexed the courts for decades. The U.S. Supreme Court’s opinions on the matter have not helped much. Although they have addressed the issue in specific...more

Indenture Trustees Must Provide Substantial Contribution to Qualify for Administrative Expense

The United States Bankruptcy Court for the Southern District of Texas recently clarified the administrative expense standard applicable to indenture trustees by holding that they can recover fees and expenses as...more

A Recent Ruling that Shari’a Compliant Investment Agreements Do Not Qualify for Safe Harbor Treatment May Have Broader...

In a first, the Bankruptcy Court for the Southern District of New York in the Arcapita Bank case had to decide whether Shari’a compliant investment agreements, providing for Murabaha and Wakala transactions, qualify for the...more

The Bankruptcy Court for the Southern District of New York Recharacterizes Debt as Equity

In a recent decision, the Bankruptcy Court for the Southern District of New York held that a purported debt held by an entity with a near-majority membership interest in the Debtor was actually equity disguised as a loan. ...more

The 365(h) Effect: Guaranty Survives Rejection of Underlying Agreement

In a recent decision, the Court of Appeals for the Sixth Circuit held that the election of a tenant, under Section 365(h) of the Bankruptcy Code, to remain in possession of real property governed by a rejected lease causes a...more

Are Critical Vendors Insulated from Preference Actions?

No, says the Delaware Bankruptcy Court in In re Maxus Energy Corp. In Maxus, the defendant, Vista Analytical Laboratory, Inc. (“Vista” or the “Defendant”), a designated critical vendor, sought summary judgement dismissing the...more

Subsequent Transferee Retains Jury Trial Rights Notwithstanding Initial Transferee’s Waiver

It is well established that by filing a proof of claim in bankruptcy, a creditor submits itself to the equitable jurisdiction of the bankruptcy court and waives any right it would otherwise have to a jury trial with respect...more

The U.S. Supreme Court Holds that Orders Granting or Denying Lift Stay Motions are Final

The consequences of an order or judgement being final or interlocutory are enormous. An order from an interlocutory order requires leave since these orders are not appealable as of right. In addition, a failure to obtain...more

Jurisdiction Over Rejection of Power Purchase Agreements—Confusion Continues

Periods of volatility in energy prices cause spikes in energy companies’ bankruptcies. These bankruptcies lead to debtors’ attempts to reject power purchase agreements (“PPAs”). These attempts ignite the unresolved legal...more

Right to Participate in Backstop is not on Account of a Pre-Petition Claim

Following various disputes as to the scope of the collateral given to secured creditors, the debtors and certain of their noteholders jointly proposed a chapter 11. The plan included a rights offering that the consenting...more

Newsflash: Subordination Agreement prevents Rule 2004 examination

Bankruptcy Rule 2004 allows the examination of any entity with respect to various topics, including conduct and financial condition of the debtor and any matter that may affect the administration of the estate. Does a...more

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