Bankruptcy Law Community

LexisNexis® Legal News Podcast for October 15, 2012

Mon, 15 Oct 2012 12:21:00 -0400

A bankruptcy judge okays a $71 million settlement deal with former partners of Dewey & LeBoeuf, and, the 11th Circuit affirms a ruling for Federal Express in an employee's gender bias suit. Hear these and other stories from LexisNexis® Mealey's™ Publications. Copyright© 2012 LexisNexis, a division of Reed Elsevier Inc. For the latest litigation news headlines, visit www.lexisnexis.com/mealeys or www.lexisnexis.com/community.

LexisNexis® Bankruptcy Law Community Podcast: Kenneth Klee and Ancela Nastasi on the U.S. Supreme Court's decision in RadLAX Gateway Hotel LLC v. Amalgamated Bank.

Wed, 15 Aug 2012 13:00:00 -0400

On this edition, Ancela Nastasi of Fulbright & Jaworski and Kenneth Klee of Klee, Tuchin, Bogdanoff & Stern discuss the May 29, 2012 U.S. Supreme Court decision in RadLAX Gateway Hotel LLC v. Amalgamated Bank in which the court held that a secured creditor has a right to credit bid its secured debt under a Chapter 11 plan of reorganization that provides for a sale of its collateral. Copyright© 2012 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. Visit www.lexisnexis.com/community/bankruptcylaw.

Brett Weiss and Dan Press Discuss Chapter 11 for Individual Debtors

Fri, 15 Jun 2012 13:00:00 -0400

On this edition, Brett Weiss and Daniel Press of Chung & Press, authors of the new Chapter 11 for Individual Debtors: A Collier Monograph, published by LexisNexis Matthew Bender, discuss their motivation for writing the book, key differences between chapter 13 and individual chapter 11 cases, and significant aspects of chapter 11 cases for individual debtors, including tax implications, cramdowns and the absolute priority rule.

Kathy Bazoian Phelps Discusses Legal Issues in Ponzi Scheme Litigation

Tue, 01 May 2012 13:00:00 -0400

On this edition, Kathy Bazoian Phelps of Danning, Gill, Diamond & Kollitz, LLP in Los Angeles discusses litigation arising from Ponzi schemes and details the legal theories for pursing claims against financial institutions, accountants and attorneys. She highlights trends in clawback/fraudulent transfer litigation and describes the red flags that may indicate the existence of a Ponzi scheme. Ms. Phelps is co-author of The Ponzi Book: A Legal Resource for Unraveling Ponzi Schemes, which is available for purchase at www.lexisnexis.com/ponzibook. Copyright© 2012 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. Visit www.lexisnexis.com/community/bankruptcylaw.

Robert Stark of Brown Rudnick Discusses Contested Valuation in Corporate Bankruptcy

Thu, 22 Mar 2012 13:00:00 -0400

On this edition, Robert J. Stark, partner in Brown Rudnick LLP's Bankruptcy and Corporate and Restructuring Group and lead editor of the new Contested Valuation in Corporate Bankruptcy: A Collier Monograph published by LexisNexis Matthew Bender, talks about the book's scope, its uniqueness, its 35 contributing authors, and the emerging valuation thought culture. He analyzes how valuation comes into play in corporate bankruptcy, pitfalls of valuation models in the chapter 11 process and the frequent disconnect between academic valuation theory and bankruptcy practice in recent cases. Copyright© 2012 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. Visit www.lexisnexis.com/community/bankruptcylaw.

Robert Stocker and Peter Kulick on Gambling Casino Chapter 11 Bankruptcy Cases

Wed, 05 Oct 2011 13:00:00 -0400

On this edition, Robert W. Stocker II and Peter J. Kulick of Dickinson Wright PLLC in Lansing, Mich. discuss key legal issues arising in gambling casino chapter 11 bankruptcy cases. They analyze factors contributing to the rise in such filings and unique issues that exist. Mr. Stocker and Mr. Kulick are contributing authors for a chapter on these issues in the LexisNexis Matthew Bender treatise "Collier Guide to Chapter 11: Key Topics and Selected Industries." Copyright© 2011 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. Visit www.lexisnexis.com/community/bankruptcylaw.

Douglas Lipke and Michael Edelman Discuss Airline Chapter 11 Bankruptcy Cases

Thu, 08 Sep 2011 13:00:00 -0400

On this edition, Douglas Lipke and Michael Edelman of Vedder Price P.C. discuss legal issues in airline reorganizations. They review special protections available to creditors of airline equipment and requirements for Bankruptcy Code section 1110 protection, and provide practice tips for counsel representing airline creditors and debtors. They are contributing authors for a chapter on issues arising in airline chapter 11 bankruptcy cases for the LexisNexis Matthew Bender treatise, Collier Guide to Chapter 11: Key Topics and Selected Industries. Copyright© 2011 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. Visit www.lexisnexis.com/community/bankruptcylaw.

Ancela Nastasi Discusses Credit Bidding and In re River Road HotelPartners, LLC

Mon, 15 Aug 2011 13:00:00 -0400

On this edition, Ancela R. Nastasi of Richards Kibbe & Orbe LLP in New York discusses the background and holding of the 7th Circuit U.S. Court of Appeals in In re River Road Hotel Partners, LLC. She analyzes the implications of the court's ruling upholding the right of a secured lender to credit bid under a plan and the split in authority among several circuits. Copyright© 2011 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. Visit www.lexisnexis.com/community/bankruptcylaw.

Read Emerging Issues Analysis: A Secured Creditor's Absolute Legal Right to Credit Bid (Part 2) by James Lawniczak, comparing the River Road case to Philadelphia Newspapers and Pacific Lumber.

Professor Kenneth Klee and Henry Sommer Discuss Stern v. Marshall

Fri, 15 Jul 2011 13:00:00 -0400

On this edition, Henry Sommer, co-editor in chief of Collier on Bankruptcy and the LexisNexis Matthew Bender Collier line of bankruptcy publications and Kenneth Klee, Professor at UCLA School of Law, discuss the U.S. Supreme Court's June 23, 2011 opinion in Stern v. Marshall. Copyright© 2010 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.

Professor Christopher Frost Discusses Corporate Governance in Insolvency and Bankruptcy.

Wed, 13 Jul 2011 13:00:00 -0400

On this edition, Christopher W. Frost, Frost Brown Todd Professor of Law at the University of Kentucky College of Law discusses his recently authored Collier Monograph: Corporate Governance in Insolvency and Bankruptcy, published in May 2011 by LexisNexis Matthew Bender. He talks about the monograph's approach, how corporate governance changes in the case of insolvency or bankruptcy as well as the role of the bankruptcy court. Copyright© 2010 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. Visit www.lexisnexis.com/community/bankruptcylaw.

David Kuney Discusses Special Issues in Chapter 11 Cases Involving Real Estate Businesses.

Mon, 20 Jun 2011 13:00:00 -0400

On this edition, David R. Kuney of Sidley Austin LLP discusses some of the key legal issues that arise in real estate Chapter 11 cases. He touches on how bankruptcy cases have changed over the years, developments in the new value exception to the absolute priority rule, the impact of several recent cases and possible trends as to real estate business Chapter 11 filings. Mr. Kuney contributed a chapter on the subject for Collier Guide to Chapter 11 Cases: Key Issues and Selected Industries, available from LexisNexis. Copyright© 2010 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. Visit www.lexisnexis.com/community/bankruptcylaw.

Secured Lenders 101 - A Basic Review with Ancela Nastasi

Tue, 07 Jun 2011 13:00:00 -0400

On this edition, Ancela Nastasi, partner in the Restructuring and Bankruptcy Group at Richards Kibbe & Orbe LLP, explains "secured lender," intercreditor agreements, credit bidding, loan to own strategies and cram-down. Copyright© 2010 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. Visit www.lexisnexis.com/community/bankruptcylaw.

Adam Rogoff Discusses Hospital and Healthcare Business Bankruptcy

Wed, 27 Apr 2011 13:00:00 -0400

On this edition, Adam Rogoff of Kramer Levin's New York office discusses factors contributing to the financial distress of hospitals and healthcare providers, key legal issues that arise in healthcare business Chapter 11 bankruptcy cases and Bankruptcy Code sections that are specific to health care cases. Mr. Rogoff contributed a chapter on issues that arise in Chapter 11 cases involving hospitals and healthcare businesses in the new Collier Guide to Chapter 11: Key Issues and Selected Industries. Copyright© 2010 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. Visit www.lexisnexis.com/community/bankruptcylaw.

James Spiotto of Chapman and Cutler Discusses the Possibility of a State Bankruptcy Chapter

Tue, 12 Apr 2011 13:00:00 -0400

On this edition, James Spiotto, the head of the bankruptcy practice at Chapman and Cutler, discusses his recent testimony before a House judiciary subcommittee on "The Role of Public Employee Pensions in Contributing to State Insolvency and the Possibility of State Bankruptcy Chapter" where he urged lawmakers to reconsider a proposal that would grant financially troubled states the right to file for bankruptcy. He explains the benefits and problems of enacting bankruptcy protection for states and possible remedies if states are not allowed to file for bankruptcy. Copyright© 2010 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. Visit www.lexisnexis.com/community/bankruptcylaw.

Ben Feder of Kelley Drye & Warren Discusses the Madoff Trustee's Lawsuit Against the Owners of the New York Mets

Tue, 01 Mar 2011 13:00:00 -0400

On this edition, Benjamin D. Feder of Kelley Drye & Warren LLP discusses the background of the lawsuit filed by Irving Picard, trustee of Bernard L. Madoff Investment Securities LLC, against the Wilpon Group, owner of the New York Mets. Mr. Feder explains the issues involved in the lawsuit and the bankruptcy judge's appointment, on his own initiative, of former New York Governor Mario Cuomo as a mediator. Copyright© 2010 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. Visit www.lexisnexis.com/community/bankruptcylaw.

Henry Sommer and Professor Kenneth Klee Discuss the U.S. Supreme Court's Decision in Ransom v. FIA Card Services (Includes Transcript)

Fri, 18 Feb 2011 13:00:00 -0400

On this edition, Henry Sommer, co-editor in chief of Collier on Bankruptcy and the LexisNexis Matthew Bender Collier line of bankruptcy publications and Kenneth Klee, Professor at UCLA School of Law, discuss the U.S. Supreme Court's Jan. 11, 2011 opinion in Ransom v. FIA Card Services. They outline the issue addressed, the majority's reasoning, questions left open by the decision and the case's likely impact on practitioners. Copyright© 2010 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. Visit www.lexisnexis.com/community/bankruptcylaw.

Transcript:

Note: Except where noted, the links to the treatises listed below are only accessible via a lexis.com subscription.

Steve Berstler: The LexisNexis Bankruptcy Law Community Podcast. Presentations and interviews with leading attorneys and industry professionals. On this edition, Professor Ken Klee and Henry Sommer on the U.S. Supreme Court's decision in Ransom v. FIA Card Services. The opinions expressed by guests interviewed on LexisNexis legal podcasts do not necessarily reflect those of Reed Elsevier Inc., LexisNexis, subsidiary companies, shareholders, employees or customers, and should not be considered legal advice.

On January 11, 2011, in the first opinion authored by Justice Elena Kagan, the U.S. Supreme Court sided with the creditor in an 8-1 ruling case of Ransom v. FIA Card Services. The court affirmed a lower court decision that a Chapter 13 debtor who no longer makes loan or lease payments on a vehicle may not take the means test vehicle ownership expense deduction. The Ransom case is the first bankruptcy case to be decided by the court in its October 2010 term, and to discuss the case, we have Henry Sommer and Professor Ken Klee. Mr. Sommer is co-editor in chief of Collier on Bankruptcy and the LexisNexis Matthew Bender Collier line of bankruptcy publications. He is past president and member of the National Association of Consumer Bankruptcy Attorneys, and author of the Collier Consumer Bankruptcy Practice Guide, Collier Consumer Bankruptcy Forms, and Collier Family Law and the Bankruptcy Code, all published by LexisNexis.

Also joining us is Professor Kenneth Klee. A professor at UCLA Law School, one of the principal draftsman of the 1978 Bankruptcy Code, wherein he served as associate counsel to the House Committee on the judiciary from 1974 to 1977. Professor Klee is author of the recent LexisNexis emerging issue analysis on the Ransom v. FIA Card Services case, and is author of Bankruptcy and the Supreme Court (Lexis Store link-not restricted), also published by LexisNexis.

Gentlemen, thank you for being here, part of this LexisNexis legal podcast. Let's begin with Professor Klee for the particular facts and issue addressed in the Ransom case. Professor?

Professor Klee: Well, the facts of the Ransom case were that we had a Chapter 13 debtor who wanted to devote his monthly income to repay his creditors and the question was in computing that income, do the debtor's monthly expenses include an expense for a car ownership cost when the debtor owned a car, but didn't have any mortgage payments or lease payments due on the car? And the issue in the case was whether the applicable deduction for car ownership expense applied to the debtor.

And the majority, written by Elena Kagan in her maiden opinion, held 8-1 that it was not applicable because there were no mortgage expenses or lease expenses, and the dissent written by Justice Scalia said that it did apply because the debtor owned a car.

Steve Berstler: Let's dig a little bit deeper into the reasoning behind the majority decision. What in particular did they focus on?

Professor Klee: They basically did a fairly standard statutory interpretation looking at the text of the statute and the purpose of the statute and the context in which the statute was enacted. They looked at the legislative history. And they basically said, looking at all these things together, at the meaning of the word "applicable" in the context is not to take money away that could otherwise be used to repay creditors, but rather was to only apply when the debtor had payments that were going to be made to a mortgage company or to a leasing company.

Steve Berstler: So he owned this car outright. It had been paid for.

Professor Klee: Yeah, he owned the car outright. It had been paid for, as many debtors have rather old, used cars and things of the sort and they don't have anything against it. And Ransom didn't, but he wanted to be able to take the car ownership deduction. And in reaching its conclusion, one of the things that the majority did that the dissent really took them to task for was looking at some I.R.S. national and local standards that they had which distinguished ownership expenses from operating costs. And of course, any debtor who owns a car is going to have operating costs, but the I.R.S. local standards distinguished between ownership costs and operating costs, and the majority used this to conclude that, well when the table is referred to ownership cost that they meant that the mortgage and lease payments, not the cost of operating the car.

Henry Sommer: The case was interesting. I mean the reasoning, as Ken said, that they did a statutory interpretation type of analysis. And then they said, and although we're not relying on them, these other I.R.S. materials and legislative history support our conclusion of what the plain language is. And it's one of these situations where some people said the plain language is so plain it means one thing and Justice Scalia said the plain language is so plain it means something else. So, the truth is, you could probably make arguments either way.

I think what probably tipped the balance here is that the United States Trustee Program, which still has a lot of hold over people from the Bush Administration, came in on the side of the MBNA, the credit card companies, and urged the result that the court ultimately reached. It was kind of interesting. The facts in this case were not particularly good for the debtor. The sort of paradigm and more typical case of the debtor who has a very old used car that they probably are going to have replace soon, and the reason they haven't bought a car is because they haven't had any money because they have all these bills.

And this debtor had a relatively new Toyota Camry that he had paid for in full, so it was not as compelling for the argument that the debtor made, which was, you know some people borrow money to buy a car and some people save money to buy a car, and you ought to treat them the same. Either way they have to pay a certain amount per month in order to own a car. And that was, you shouldn't treat people who are on a cash basis different than if they were on accrual basis, essentially. And the court didn't buy that argument and I think that raises some issues for a debtor's council going forward.

Steve Berstler: Would you say then this is a loss for consumer bankruptcy debtors?

Henry Sommer: It was a loss. I mean, how much it will effect them remains to be seen because there are strategies to, more or less, achieve the result that would've been achieved if the debtor had won, but it was definitely a victory for the credit card companies as far as it went.

Steve Berstler: Professor Klee, you mentioned that the lone dissenting justice, Justice Scalia, took the majority to task. Were you surprised it was the lone dissenter here?

Professor Klee: Not really. Generally, a new justice is given a unanimous opinion to write as her first opinion and it's somewhat unusual to have a dissent for a maiden opinion. But, Justice Scalia is a very devoted textualist, and he loathes references to legislative history or I.R.S. guidelines, or things like that in reaching a determination about what Congress intended and meant when it wrote a statute. And I think that he was really going out on a limb here to stand by his textualist interpretation of statutes, as opposed to necessarily carrying the cause for consumer debtors here.

Steve Berstler: Were there any questions left open by this decision?

Professor Klee: Oh my gosh, I think that this decision just raises more questions than it asks, and that Justice Kagan perhaps made a mistake in putting things in the opinion to respond to hypotheticals raised by the dissent that she really didn't need to write. For example, I think the most serious one is the court's suggestion that if a debtor is making car payments at the inception of bankruptcy, but completes making the payments during the course of the Chapter 13 plan, that a creditor, an unsecured creditor, could move to modify the plan to increase the amount the debtor must repay. I think that that suggestion was utterly unnecessary, and I think that that result would not be traditional or justified.

Henry Sommer: Well, I think in some ways, that to me was one of the few redeeming features of the opinion because there has been a debate in the case law about what do you do when a debtor's payments, whether it's for a car or for say a 401(k) loan, end in the middle of a plan? And there have been a number of courts that said well, we can just step up their plan payments at that time. To me, that has always seemed totally wrong because you don't know two or three years into the plan what the debtor's financial situation is.

You're really kind of taking apples and oranges because if he were to do the means test analysis at that time, it's likely the I.R.S. standards would be higher, the debtor might have other expenses, or might have different income. So, I've always maintained that modification is the way to deal with a change such as a change in car payments rather than to try and predict at the time of confirmation what the financial situation is going to be well into the plan. Now, Justice Kagan took it to the extreme by saying that modification would apply even if the car payment ended like one month into the plan. I don't know that too many courts would go that far.

But I think in this debate about whether you should base a planned confirmation on something that is projected to happen two or three years into the future, this opinion is very helpful in saying no, do the means test analysis based on the facts that are known, that apply at the time of the confirmation, and if something happens two or three years in the future, and someone thinks that changes the debtor's ability to pay, they can file the motion to modify at that time. So, I think that that's actually a pretty helpful part of this opinion. It sort of extends the [Hamilton v.] Lanning reasoning.

Lanning, you might remember, was the case that held that you can change, in that case, a debtor's income figure based on known or virtually certain facts that are applicable at the time of confirmation. In that particular case it was known that the debtor's income was no longer as high has the debtor had listed as current monthly income on the means test form because his income had included a bonus that she wasn't going to be getting anymore. So this, I think, further carries that out in saying if you're talking about what the situation is going to be two or three years into the plan, that's not known or virtually certain.

Yeah, you might know that this particular payment is gonna end, but you don't know everything else about what's going to be the situation at that time.

Steve Berstler: Right. There might be other factors at that time.

Henry Sommer: Well, there almost certainly will be. A couple other questions that were left open. MBNA, the credit card company, had wanted the court to rule that not only do you not get the ownership allowance if you don't have a loan payment, but in addition, if your loan payment or lease payment is less than the ownership allowance, you would get that lower amount. And the court declined to rule on that fact because it wasn't before the court. But, I do think there are a couple things in the opinion which give pretty strong hints about how the court would rule. The first thing is they talk about, their whole discussion is about, when is this allowance applicable?

They said it's not applicable if you don't have a payment, but if you do have a payment, then it is applicable. And the statute itself of course refers to the amount specified in that standard. The other thing is that in referring to what the I.R.S. does, which is to give the debtor the lower amount if that's all the loan payment is, refer to that as I.R.S. practice. I think in the contrast between saying well, we're trying to determine whether this table, which has this specific amount in it, is applicable as opposed to I.R.S. practice. I think that's a pretty good indication that they would say it is the table and otherwise specific ownership allowance that governs.

The other issue that is sort of hanging is what was given to the debtor in the Ransom decision of the Ninth Circuit, which was affirmed by the Supreme Court. The creditors and the United States Trustees have said well, you don't get this ownership allowance if you don't have any car payments, even if you have a really old car, but we will give you a $200.00 extra operating expense allowance because the I.R.S. gives that allowance. Now, it's a little problematic because it's not in the actual I.R.S. standards. So I think there was a question of whether debtors will be able to claim that $200.00 extra operating allowance which the I.R.S. gives if the car is over 75,000 miles or it's over six years old.

Again, the Court of Appeals specifically adopted that, so I'd certainly argue that was part of what was affirmed.

Steve Berstler: Professor Klee, let me ask you about the impact of this ruling and are there any specific practice tips for attorneys representing consumer debtors or attorneys representing creditors?

Professor Klee: I do think the consumer debtors lawyers have to be very careful about how they deal with this opinion. There's obviously a big difference to a Chapter 13 debtor about whether the car ownership allowance is going to apply or not, and if the debtor has an option to complete payments or to default on payments before filing for bankruptcy, they may be well advised not to complete those payments in order to seek to gain the ownership cost deduction.

Where I think this gets a little more dicey though, is if the car is free and clear, whether the debtor's attorney can either counsel the consumer debtor to take out a loan secured by a lien on the car, or even more problematic, financing the retainer with a lien on the car, and the attorneys fees with a lien on the car, in order to enable the debtor to get this ownership cost deduction. There might be debtors who think this is good consumer planning.

The problem is that under the Supreme Court's jurisprudence that we have in Milavetz, it could be that the debtor's attorney incurs a risk of having counseled debtors to incur new debts in contemplation of bankruptcy in violation of sections 526(a)(4) and 526(c)(5)(B) of the Bankruptcy Code. So, I think that this is going to raise some very difficult issues on the ground for consumer debtor lawyers.

Henry Sommer: Well, first of all, it certainly raises a lot of those issues. I'll talk about those in a second. But, this opinion, although it was in a 13 case, I don't think there's any doubt that issue of the car allowanced applies equally under § 707(b) and the means test there. So, we're not talking solely about Chapter 13. Now, in either case, there may be many cases where it doesn't make a difference whether you have this allowance or not. There are many, many debtors who end up with negative disposable income and would end up with a negative disposable income with or without the allowance.

For the debtor though for whom it would make a difference, I think if you do go back to Milavetz, and Milavetz - you know this is one of the issues that was discussed in Milavetz, a debtor who is going to file a Chapter 7 or a Chapter 13 case is going to have a hard time getting a loan to buy a reliable car after they file. Milavetz specifically said that if the debtor needs to get reliable transportation, it's perfectly appropriate to advise them that they can incur a loan for that purpose. I think you'd want to document why you thought it was necessary in your file to sort of cover yourself.

And further, Milavetz had this whole section on well, even if you're - the issue about advising the debtor what to do is different from discussing with the debtor what the law is. There is nothing wrong with telling the debtor if you happen to get a car loan before the bankruptcy, this may reduce your Chapter 13 payment obligation, but that's your choice. I'm not advising you one way or the other. And so, it becomes an issue that definitely needs to be discussed and considered before the case is filed because once the case is filed, it's too late to effect the means test or the disposable income test.

Steve Berstler: Any final thoughts about this decision, about this case?

Professor Klee: I think it was a very finely reasoned and well-written opinion by Elena Kagan in her first opinion and it's a credit to the bankruptcy bar that she got to write a bankruptcy opinion.

[Crosstalk]

Henry Sommer: I think we're [Inaudible] starting to give bankruptcy cases to the junior justices a lot of the time. We saw Justice Thomas and some of the others. Justice Sotomayor had the Milavetz case. I think it's a pretty standard statutory interpretation type of case. I think it could've gone either way. Again, I think the fact that the Solicitor General came in on the side of the creditor may have made the difference. I think one could've written just as respectable an opinion and come to the opposite result. So, it's sort of standard fare where everybody knows exactly what the plain language means, it's just that they don't agree on what the plain language means.

Steve Berstler: Previous Supreme Court term was a busy one, as far as bankruptcy cases are concerned. Are there any other cases before the justices that we should be on the lookout for now? Bankruptcy cases that is.

Professor Klee: Well, they have potentially the most significant decision since Marathon was decided in 1982 in the Stern v. Marshall decision, better known to the public as the Anna Nicole Smith case, which is before the Supreme Court a second time. This time on an issue of very esoteric bankruptcy jurisdiction. And there is a way for the court to duck this issue and dispose of it by finding that the bankruptcy court lacked jurisdiction because there was a personal injury tort that was involved.

But if they actually get to the merits of whether the court has jurisdiction to consider compulsory counter claims and to grant affirmative recoveries when a creditor seeking non-dischargeable debt determination has also filed proof of claim, the court could well circumscribe the power of the bankruptcy court in a manner that we haven't seen in over 20 years.

Henry Sommer: Yeah, I think there is a significant chance that at least a small part of the 1984 jurisdictional scheme, which in turn was adopted to fix the defective, at least according to the Supreme Court, 1978 jurisdictional scheme may again be found unconstitutional insofar as it would allow the bankruptcy court to consider these counter claims against people who file proofs of counter claims for damages. So, that will be interesting. It's kind of an interesting case in that both of the principal parties are now dead and is basically being litigated by their executors and successors whose interest. But, it definitely has a potential to be pretty significant in terms of jurisdiction.

Steve Berstler: Oral argument was held in mid-January 2011, and we look forward to having both of you gentlemen back to discuss the Court's decision.

Professor Klee: It'll be our pleasure.

Henry Sommer: Absolutely.

Steve Berstler: And thank you two for your review of the Ransom case. Henry Sommer and Professor Ken Klee.

Thank you for listening to this LexisNexis legal podcast. Visit the LexisNexis communities at www.lexisnexis.com/community. The LexisNexis Bankruptcy Law Community Podcast copyright 2011 by LexisNexis, a division of Reed Elsevier Inc.

I'm Steve Berstler. Thank you for listening.

James Higgason Jr. of Andrews Kurth LLP Discusses Fraudulent Transfer Action Claims Against the FDIC in Bank Holding Company Cases

Fri, 11 Feb 2011 13:00:00 -0400

On this edition, James D. Higgason Jr., partner in the trial section of the Houston office of Andrews Kurth LLP, discusses his chapter titled Fraudulent Transfer Action Claims Against the FDIC in Bank Holding Company Cases that appears in the Collier Guide to Chapter 11, Key Topics and Selected Industries. He explains how the FDIC can engage in regulatory overreaching, the remedies that exist and the limitations imposed by the Gramm Leach Bliley Act. Copyright© 2010 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. Visit www.lexisnexis.com/community/bankruptcylaw.

Ronald Silverman of Bingham McCutchen LLP Discusses Chapter 15 Law and Practice

Tue, 01 Feb 2011 13:00:00 -0400

On this edition, Ronald J. Silverman of Bingham McCutchen LLP, discusses the purpose and goals of Chapter 15 and the requirements for commencing a Chapter 15 case. He also talks about the types of relief that can be obtained and the cooperation and communication between domestic Chapter 15 or Chapter 11 courts and foreign courts. He is the author of Chapter 15 Law and Practice in the Collier Guide to Chapter 11: Key Topics and Selected Industries, which is available from LexisNexis. Copyright© 2010 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. Visit www.lexisnexis.com/community/bankruptcylaw.

Hon. Cecelia G. Morris, John Rao and Asha Shravah Discuss Court-Supervised Loss Mitigation Programs

Thu, 16 Dec 2010 13:00:00 -0400

On this edition, Hon. Cecelia G. Morris, U.S. Bankruptcy Judge for the Southern District of New York, John Rao, attorney with the National Consumer Law Center in Boston, and Asha Shravah, Senior Associate in the bankruptcy department of Rosicki, Rosicki and Associates, P.C., discuss the loss mitigation program in the U.S. Bankruptcy Court for the Southern District of New York that allows debtors and creditors to negotiate mortgage loan modifications to avoid foreclosure. They talk about the court-supervised mediation program's success, feedback from the courts and the bar and possibility of the program's expansion to other courts. Copyright© 2010 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. Visit www.lexisnexis.com/community/bankruptcylaw.

LexisNexis® Legal News Podcast for December 9, 2010

Thu, 09 Dec 2010 12:09:00 -0400

Bernard Madoff's bankruptcy trustee secures a nearly $500 million feeder-fund bank settlement, and, the SEC reaches a $137 million settlement with a Banc of America subsidiary in a municipal bond investigation. Hear these and other stories from LexisNexis® Mealey's Publications. Copyright© 2010 LexisNexis, a division of Reed Elsevier Inc. For the latest litigation news headlines, visit www.lexisnexis.com/mealeys or www.lexisnexis.com/community.

James Morgan of K&L Gates LLP Discusses Sales of Assets Under Section 363

Thu, 02 Dec 2010 13:00:00 -0400

On this edition, James E. Morgan of K&L Gates LLP, and co-author of the chapter "Sales of Assets Under Section 363" in Collier Guide to Chapter 11: Key Topics and Selected Industries, discusses some of the high-profile Section 363 sales of companies in bankruptcy, the benefits and drawbacks of such a sale and the role of secured creditors in such transactions. Copyright© 2010 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. Visit www.lexisnexis.com/community/bankruptcylaw

Neil Herman of Morgan, Lewis & Bockius Discusses Retail Industry Bankruptcies

Mon, 29 Nov 2010 13:00:00 -0400

On this edition, Neil Herman of Morgan, Lewis & Bockius LLP in New York, and contributing author of the retail industry chapter of the Collier Guide to Chapter 11: Key Topics and Selected Industries, discusses the reasons behind the large number of recent retail industry bankruptcies, the key parties involved and selection of the bankruptcy venue. He details some of the key legal issues that arise in retail bankruptcy cases and examines the impact of the 2005 Bankruptcy Act (BAPCPA) on such cases. Copyright© 2010 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. Visit www.lexisnexis.com/community/bankruptcylaw.

LexisNexis® Legal News Podcast for Nov. 17, 2010-Madoff Bankruptcy Trustee Secures $1B Judgment Against Feeder Fund

Thu, 18 Nov 2010 11:58:00 -0400

A Madoff bankruptcy trustee secures an approximately $1 billion judgment against a feeder fund, and, the 5th Circuit affirms a boat owner took reasonable precautions in preparing for Hurricane Katrina. Hear these and other stories from LexisNexis® Mealey's™ Publications. Copyright© 2010 LexisNexis, a division of Reed Elsevier Inc. For the latest litigation news headlines, visit www.lexisnexis.com/mealeys or www.lexisnexis.com/community.

Eric Bensen Discusses Collier Guide to Chapter 11: Intellectual Property Issues in Bankruptcy

Mon, 15 Nov 2010 13:00:00 -0400

On this edition, intellectual property lawyer Eric Bensen discusses the chapter he has written on IP issues in bankruptcy that appears in the new Collier Guide to Chapter 11: Key Topics and Selected Industries. Mr. Bensen provides an overview of the chapter and explains how the two areas of law intersect. Plus, he discusses missteps bankruptcy lawyers can make vis-a-vis intellectual property. Copyright© 2010 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. Visit www.lexisnexis.com/community/bankruptcylaw.

Irwin Kishner and Paul Rubin of Herrick, Feinstein LLP Discuss the Texas Rangers Bankruptcy Case and Sports Franchise Bankruptcy Issues

Fri, 05 Nov 2010 11:55:00 -0400

On this edition, Irwin A. Kishner and Paul A. Rubin of Herrick, Feinstein LLP discuss recent chapter 11 bankruptcy cases involving professional sports franchises and the unique issues that arise in such filings. They talk about the recent Texas Rangers bankruptcy case and the possibility of other professional sports teams filing for chapter 11 reorganization. Copyright© 2010 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. Visit www.lexisnexis.com/community/bankruptcylaw.