Bankruptcy

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New Pleading Standards for Avoidance Actions in Bankruptcy Courts
Posted on 7 Dec 2009 by Gerald Baldwin

Pleading standards in bankruptcy avoidance actions have historically been set extremely low. The standards were so low that practitioners seldom saw a motion to dismiss under Rule 12(b)(6). The rules have just changed. NOTE: The case links below may... Read More

Statutory Interpretation in Bankruptcy Matters
Posted on 18 May 2009 by James Lawniczak

In this analysis, James Lawniczak surveys the Supreme Court's evolving approach to the interpretation of bankruptcy statutes. He explains how the Courts common law method has evolved into a "plain meaning" approach, where the Court reviews... Read More

In re Bear Stearns: Court Slams Door on Subjective Approach to Chapter 15
Posted on 22 Sep 2008 by Daniel Glosband

Excerpt: The liquidators of two Cayman registered hedge funds appealed the bankruptcy courts refusal to grant recognition to foreign proceedings that did not satisfy chapter 15’s strict eligibility requirements. The District Court rejected their... Read More

Terminal Valuation: Will the Seventh Circuit Decision on Valuation of United Airlines Bond Collateral Bring Closure to Recharacterization Litigation?
Posted on 2 Feb 2010 by P. Anker, C. Goldblatt, G. Shuster, J. Sigel

The Seventh Circuit's decision to reverse a ruling on valuation made by the Northern District of Illinois District Court regarding collateral for United Airlines bonds is an interesting one in its own right, for its approach to valuing collateral... Read More

Debtor Against Debtor: Limits on the Discharge of Claims by One Bankruptcy Estate Against Another
Posted on 19 Jan 2010 by John D. Sigel & George W. Shuster, Jr.

As corporate bankruptcy filings increase, one debtor corporation is more likely to find that it has claims against another unaffiliated debtor corporation. The US Bankruptcy Code is generally not drafted with this situation in mind, and questions may... Read More

New Pre-Bankruptcy Procedures in Greece
Posted on 11 Dec 2009 by Constantinos Klissouras

As of 16 September 2007, a new Insolvency Code governs insolvency and restructuring in Greece. The Code strives to abandon the inefficiency and archaic obscurity of the old law and to institute an efficient and effective insolvency regime drawing on the... Read More

Herrick, Feinstein LLP on the Madoff Litigation Landscape
Posted on 8 May 2009 by Therese Doherty, Howard Elisofon & John Oleske

Despite having several options for restitution, Madoff victims face a return of mere pennies and the possibility of years of litigation. In this Commentary, Therese M. Doherty, Howard R. Elisofon and John Oleske of the New York City-based law firm Herrick... Read More

The Supreme Court's Holding in Travelers Indemnity Co. v. Bailey, 129 S. Ct. 2195 (2009)
Posted on 16 Oct 2009 by Kenneth Klee

In this LexisNexis Emerging Issues Analysis, Professor Kenneth N. Klee discusses the holding in Travelers Indemnity Co. v. Bailey , 2009 U.S. LEXIS 4537, 129 S. Ct. 2195 (2009), the most recent in a long line of five other Supreme Court cases consistently... Read More

Agent May Consent to a "Free-and-Clear" Sale or Credit Bid under Section 363 of the Bankruptcy Code over Objection of Dissenting Minority Secured Lenders
Posted on 4 Sep 2009 by Paul H. Zumbro

In August 2009, the United States Court of Appeals for the Second Circuit held that a dissenting minority lender could not object to a "free-and-clear" sale in circumstances where the loan documents authorized the agent to act on behalf of the... Read More

In re Oversight & Control Comm'n of Avanzit, S.A.
Posted on 22 Sep 2008 by Daniel Glosband

A United States Bankruptcy Court recently clarified that a foreign proceeding in which a repayment plan had been approved and court supervision reduced was still eligible for recognition under chapter 15 of the U.S. Bankruptcy Code. This commentary discusses... Read More

Hon. Ralph R. Mabey on In re Excel Innovations
Posted on 14 Mar 2008 by Hon. Ralph R. Mabey

The courts of appeals do not agree on the standard for issuing an injunction to stay litigation against a nondebtor party. Many lower courts have followed the lead of the Fourth Circuit in granting a section 105 injunction against litigation that interferes... Read More

Riker, Danzig, Scherer, Hyland & Perretti v. Official Committee of Unsecured Creditors (In re Smart World Technologies, LLC), 552 F.3d 228 (2d Cir. 2009)
Posted on 22 Dec 2009 by James Lawniczak

In this Emerging Issues Analysis, author James Lawniczak looks at the Second Circuit's consideration of whether a fee request was pre-approved under Code section 328(a) and thus was not subject to the reasonable compensation determination of section... Read More

Ogle v. Fidelity & Deposit Co. of Maryland, 586 F.3d 143 (2d Cir. 2009)
Posted on 8 Jan 2010 by James Lawniczak

In this Emerging Issues Analysis, James Lawniczak considers the Second Circuit's holding that an unsecured creditor has a valid claim under a prepetition indemnity agreement for the expenditure of postpetition attorneys' fees related to the litigation... Read More

The Treatment of "Stub Rent" in the Goody's and Stone Barn Retail Apparel Bankruptcies
Posted on 25 Jan 2010 by K Bachman-K Barnett-B Loveland-N Manzer-G Shuster

Two recent decisions in retail apparel bankruptcy cases, in Delaware and New York, highlight the ongoing uncertainty regarding "stub rent". While the ultimate financial outcomes for the landlords in the two cases are similar, the different approaches... Read More

Environmental Obligations and the Code's Definition of "Claims"
Posted on 5 Aug 2009 by Adam Strochak

Whether an environmental obligation constitutes a "claim" as that term is defined by the Bankruptcy Code is a significant issue because only a "claim" is potentially subject to discharge. Here, Adam P. Strochak, of Weil, Gotshal &... Read More