Author Info for Mintz - Bankruptcy & Restructuring Viewpoints

Charles Azano

Non-Debtor Substantive Consolidation: Do Recent Cases Signal a Judicial Preference for State Law Claims?

It is not unusual for a creditor of a debtor to cry foul that a non-debtor affiliate has substantial assets, but has not joined the bankruptcy. In some cases, the creditor may assert that even though its claim, on its face, is…more

Alter Ego, Commercial Bankruptcy, Non-Debtors, State Law Claims, Substantive Consolidation

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Eric Blythe

In re Weinstein and Mallinckrodt: Implications for Royalty Financings, M&A Earn-Outs, and Other Transactions Involving Future Payment Obligations

Deal structure matters, particularly in bankruptcy. The Third Circuit recently ruled that a creditor’s right to future royalty payments in a non-executory contract could be discharged in the counterparty-debtor’s bankruptcy. The…more

Acquisitions, Appeals, Asset Purchase Agreements, Bankruptcy Code, Bankruptcy Court

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Jacklyn Branby

Delaware Bankruptcy Court Grants Derivative Standing to Creditors’ Committee to Sue Members and Officers of Delaware LLC

In early February, a Delaware bankruptcy judge set new precedent by granting a creditors’ committee derivative standing to pursue breach of fiduciary duty claims against a Delaware LLC’s members and officers. At least three…more

Bankruptcy Code, Bankruptcy Court, Breach of Duty, Corporate Counsel, Creditors

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David Chorney

363 Sales as a Health Care M&A Tool, Part 2 – Pros and Cons for Buyers and Sellers

Over the summer, we wrote about why health care companies may want to consider buying assets out of bankruptcy, taking advantage of the Bankruptcy Code Section 363 sale process (a “363 Sale”). We are back with our second post,…more

363 Sales, Bankruptcy Code, Commercial Bankruptcy, Contract Terms, Due Diligence

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Alexander Civetta

Early- and Growth-Stage Companies in Distress: What Directors Need to Know about their Fiduciary Duties

Most high-growth companies find themselves in a race against the clock, trying to use whatever capital they may have to achieve milestones prior to hitting their cash-out date. When markets are tight, as they have been over the…more

Confidential Information, Conflicts of Interest, Duty of Care, Duty of Loyalty, Fiduciary Duty

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Deborah Daccord

363 Sales as a Health Care M&A Tool, Part 2 – Pros and Cons for Buyers and Sellers

Over the summer, we wrote about why health care companies may want to consider buying assets out of bankruptcy, taking advantage of the Bankruptcy Code Section 363 sale process (a “363 Sale”). We are back with our second post,…more

363 Sales, Bankruptcy Code, Commercial Bankruptcy, Contract Terms, Due Diligence

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Joseph Dunn

Consolidated Appropriations Act of 2021 Amends Bankruptcy Code - Part 3: Congress Gives Suppliers and Landlords a Shiny New Arrow in their Quiver to Challenge Preference Actions

As discussed in previous posts, the Consolidated Appropriations Act of 2021 (the “Act”) was signed into law on December 27, 2020, largely to address the harsh economic impact of the COVID-19 pandemic. For bankruptcy litigators…more

Bankruptcy Code, Clawbacks, Commercial Leases, Commercial Property Owners, Commercial Real Estate Market

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Richard Gervase, Jr.

In re Weinstein and Mallinckrodt: Implications for Royalty Financings, M&A Earn-Outs, and Other Transactions Involving Future Payment Obligations

Deal structure matters, particularly in bankruptcy. The Third Circuit recently ruled that a creditor’s right to future royalty payments in a non-executory contract could be discharged in the counterparty-debtor’s bankruptcy. The…more

Acquisitions, Appeals, Asset Purchase Agreements, Bankruptcy Code, Bankruptcy Court

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Caitlin Hill

Six Contracting Tips for Property Owners and Real Estate Developers to Protect Themselves from Contractor Distress and Related Bankruptcy Filings

Over the past year, the Covid-19 pandemic upended many industries. While the construction industry has largely been able to operate throughout the pandemic, albeit with increased and ever-changing restrictions on jobsites, one…more

Automatic Stay, Bankruptcy Code, Commercial Bankruptcy, Construction Contracts, Construction Industry

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William Kannel

In re Weinstein and Mallinckrodt: Implications for Royalty Financings, M&A Earn-Outs, and Other Transactions Involving Future Payment Obligations

Deal structure matters, particularly in bankruptcy. The Third Circuit recently ruled that a creditor’s right to future royalty payments in a non-executory contract could be discharged in the counterparty-debtor’s bankruptcy. The…more

Acquisitions, Appeals, Asset Purchase Agreements, Bankruptcy Code, Bankruptcy Court

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Dormie Ko

2022 Amendments to the Bankruptcy Rules

The latest amendments to the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”) took effect on December 1, 2022. This collection of modifications may be broadly divided into two categories: (i) amendments and a new…more

Chapter 11, Chapter 12, Chapter 13, Chapter 7, Debtors

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Andrew Levin

Director Fiduciary Duties May Extend Post-Closing in Multi-Stage Transactions

A recent decision by the United States District Court for the Southern District of New York highlights directors’ fiduciary duty to evaluate all aspects of multi-stage transactions, including those portions to be effectuated…more

Aiding and Abetting, Breach of Duty, Business Judgment Rule, Fiduciary Duty, Motion to Dismiss

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H. Andrew Matzkin

Timothy McKeon

Early- and Growth-Stage Companies in Distress: What Directors Need to Know about their Fiduciary Duties

Most high-growth companies find themselves in a race against the clock, trying to use whatever capital they may have to achieve milestones prior to hitting their cash-out date. When markets are tight, as they have been over the…more

Confidential Information, Conflicts of Interest, Duty of Care, Duty of Loyalty, Fiduciary Duty

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Pete Michaels

Massachusetts Attorney General Issues Guidance Clarifying the COVID-19 Emergency Debt Collection Regulations

On the heels of codifying 940 CMR 35.00, the “Unfair and Deceptive Debt Collection Practices During the State of Emergency Caused by COVID-19” (the “Emergency Regulations”), Attorney General Maura Healey issued guidance on April…more

Coronavirus/COVID-19, Debt Collection, Debt Collectors, Financial Services Industry, State Attorneys General

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Abigail O'Brient

Consolidated Appropriations Act of 2021 Amends Bankruptcy Code - Part 3: Congress Gives Suppliers and Landlords a Shiny New Arrow in their Quiver to Challenge Preference Actions

As discussed in previous posts, the Consolidated Appropriations Act of 2021 (the “Act”) was signed into law on December 27, 2020, largely to address the harsh economic impact of the COVID-19 pandemic. For bankruptcy litigators…more

Bankruptcy Code, Clawbacks, Commercial Leases, Commercial Property Owners, Commercial Real Estate Market

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Daniel Pascucci

Fraud Investigations and Complex Asset Recovery in 2020: A Q&A With Mintz Cross-Border Asset Recovery Co-Chairs Dan Pascucci and Joe Dunn

With courts and government agencies around the world enacting emergency measures in response to the Covid-19 pandemic – ranging from complete shutdowns to delays and limitations – advancing the ball in dispute resolution is more…more

Arbitration Awards, Asset Recovery, Business Interruption, Coronavirus/COVID-19, Cross-Border Transactions

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Michael Pastore

Massachusetts Attorney General Issues Guidance Clarifying the COVID-19 Emergency Debt Collection Regulations

On the heels of codifying 940 CMR 35.00, the “Unfair and Deceptive Debt Collection Practices During the State of Emergency Caused by COVID-19” (the “Emergency Regulations”), Attorney General Maura Healey issued guidance on April…more

Coronavirus/COVID-19, Debt Collection, Debt Collectors, Financial Services Industry, State Attorneys General

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Rachel Irving Pitts

363 Sales as a Health Care M&A Tool, Part 2 – Pros and Cons for Buyers and Sellers

Over the summer, we wrote about why health care companies may want to consider buying assets out of bankruptcy, taking advantage of the Bankruptcy Code Section 363 sale process (a “363 Sale”). We are back with our second post,…more

363 Sales, Bankruptcy Code, Commercial Bankruptcy, Contract Terms, Due Diligence

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Megan Preusker

Understanding Post-Bankruptcy Liquidation Trusts

A main goal in bankruptcy is to get in and out as quickly as possible to minimize costs. It is often the case that even though a substantial portion of a debtor’s assets have been liquidated in bankruptcy, some valuable assets…more

Beneficiaries, Chapter 11, Commercial Bankruptcy, Debtors, Investigations

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Paul Ricotta

Are Bankruptcy Blocking Provisions in Corporate Governance Documents Enforceable?

It has long been the law that creditors are rarely entitled to contractually prohibit a debtor from filing for bankruptcy, whether such restriction is contained in the debt instruments or in the corporate governance documents…more

Breach of Duty, Commercial Bankruptcy, Corporate Governance, Creditors, Debtors

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Rachel Sposato

Smoked Out: How Those In The Cannabis Industry May Finally Gain Bankruptcy Protection

Could bankruptcy protection be on the horizon for individuals and companies actively involved in the cannabis industry? Potentially yes, following President Biden’s October 6, 2022 request for the Secretary of Health and Human…more

Bankruptcy Appellate Panel (BAP), Bankruptcy Court, Cannabis-Related Businesses (CRBs), Chapter 7, Controlled Substances Act

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Samuel Tony Starr

Six Contracting Tips for Property Owners and Real Estate Developers to Protect Themselves from Contractor Distress and Related Bankruptcy Filings

Over the past year, the Covid-19 pandemic upended many industries. While the construction industry has largely been able to operate throughout the pandemic, albeit with increased and ever-changing restrictions on jobsites, one…more

Automatic Stay, Bankruptcy Code, Commercial Bankruptcy, Construction Contracts, Construction Industry

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Dallas Taylor

FTX: Forcing The Examiner Mandate in the Third Circuit

It is a rare occasion that one can be assured with certainty that, if they file a motion with a bankruptcy court, it will be granted. But, in the Third Circuit, that is exactly what will happen if a creditor or other party in…more

Appeals, Bankruptcy Code, Bankruptcy Court, Chapter 11, Commercial Bankruptcy

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Kaitlin Walsh

SCOTUS Bankruptcy Decision Roundup

On average, the Supreme Court hears a single bankruptcy case each term. But during the October 2022 term, the Supreme Court issued a remarkable four decisions in bankruptcy cases. These decisions, which are summarized below,…more

Appeals, Bankruptcy Code, Bankruptcy Court, Chapter 13, Debtors

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Leonard Weiser-Varon

First Circuit Rules That “Incorporation by Reference” of Collateral Description in UCC Financing Statements May Not Perfect Lien

Tolstoy warned that “if you look for perfection, you’ll never be content”, but Tolstoy wasn’t a bankruptcy lawyer. In the world of secured lending, perfection is paramount. A secured lender that has not properly perfected its…more

Bondholders, Collateral, Creditors, Debtors, Disclosure Requirements

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Aaron Williams

Bankruptcy Court Upholds Indian Tribe’s Sovereign Immunity

In a decision published October 19, 2020, Judge Frank J. Bailey of the U.S. Bankruptcy Court for the District of Massachusetts found that an Indian tribe was not subject to the Bankruptcy Code’s automatic stay. This decision…more

Automatic Stay, Bankruptcy Code, Chapter 13, Congressional Intent, Native American Issues

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