Bankruptcy & Restructuring Viewpoints

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 Services to begin the administrative process to review marijuana’s classification as a Schedule I substance under the Controlled Substance Act (“CSA”).

Charting New (and Familiar) Territory: The Voyager Crypto Bankruptcy

July 18, 2022 | Blog | By Dallas Taylor

Voyager Digital Assets Inc., along with two of its affiliates, filed bankruptcy petitions in the Southern District of New York on July 5, 2022. While “crypto” is a newcomer to the United States bankruptcy system, the familiar contours of insolvency law will be at play in the Voyager bankruptcy with many new questions yet to be answered.

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

May 5, 2021 | Blog | By Caitie Hill, Tim McKeon, Samuel M. Tony Starr

A reminder for how property owners and real estate developers can protect themselves – and their projects – from downstream distress. There are six key issues that owners should consider when contracting for their next project.

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

April 16, 2021 | Blog | By Andrew B. Levin

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 post-closing by successor directors.

The Expanding Contours of Permissible Non-Debtor Releases in the Ninth Circuit

April 1, 2021 | Blog | By Andrew B. Levin, William Kannel

In a recent decision, In re Astria Health, Case No. 19-01189-WLH11, 2021 Bankr. LEXIS 155 (Bankr. E.D. Wash. January 22, 2021), the Bankruptcy Court for the Eastern District of Washington arguably further expanded the context in which non-debtor releases may be allowed.

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

February 2, 2021 | Blog | By Joseph Dunn, Abigail O'Brient

For bankruptcy litigators – or any business which has been frustrated to receive a demand letter after one of its customers filed bankruptcy – one particular amendment stands out in the CARES ACT bill. The Act amended Section 547 of the Bankruptcy Code to provide suppliers and landlords with an additional potential challenge to actions brought to “claw back” payments made by a debtor in the 90 days preceding bankruptcy.

Consolidated Appropriations Act of 2021 Amends Bankruptcy Code
Part 2: Amendments Affecting Landlords

January 29, 2021 | Blog | By Andrew B. Levin, Abigail O'Brient

The CARES Act assists debtors by amending Section 365(d)(3) of the Bankruptcy Code to allow, at the bankruptcy court’s discretion, small business debtors experiencing pandemic-related financial hardship an extra 60 days, in addition to the initial 60-day grace period, to make payments under unexpired leases of non-residential real property following the bankruptcy filing date.

Consolidated Appropriations Act of 2021 Amends Bankruptcy Code
Part 1: Amendments Clarifying Debtors’ Rights to Other Pandemic Relief

January 26, 2021 | Blog | By Andrew B. Levin, Abigail O'Brient

The CARES Act benefits both debtors and creditors by temporarily modifying several sections of the Bankruptcy Code, which may be of particular interest to creditors.

The Automatic Stay: Supreme Court Finds that Retaining Debtors’ Property, Despite Turnover Demands, is Not a Stay Violation

January 21, 2021 | Blog | By Eric Blythe

The Automatic Stay: Supreme Court Finds that Retaining Debtors’ Property, Despite Turnover Demands, is Not a Stay Violation

Amendments to Bankruptcy Rules Set to Take Effect on December 1, 2020

December 1, 2020 | Blog | By Tim McKeon

On December 1, 2020, certain amendments to the Federal Rules of Bankruptcy Procedure take effect. The amendments largely modify rules governing bankruptcy appeals, but also impact Rules 2002 and 2004.

Bankruptcy Court Upholds Indian Tribe’s Sovereign Immunity

November 5, 2020 | Blog | By Aaron Williams

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

September 11, 2020 | Blog | By Deborah Daccord, William Kannel, Tim McKeon

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, to provide more detail to the process and discuss some pros and cons of 363 Sales.

As a refresher, a 363 Sale couples a flexible and fast process with ample liability protection for willing buyers. The primary benefit of a 363 Sale is that a buyer can acquire the debtor’s assets free and clear of virtually all liens, claims, and interests burdening the assets and the debtor. And when Section 363 is coupled with the “assumption and assignment” provisions of Section 365 of the Bankruptcy Code, a debtor is able to assign most contracts or leases that a buyer may wish to purchase, including contracts with ironclad anti-assignment language, provided that certain conditions are satisfied. When a target is experiencing severe financial distress, the benefit of acquiring assets “free and clear” is extraordinarily valuable.

Third Circuit Upholds Cramdown, Downplays Subordination Agreement

September 4, 2020 | Blog | By Aaron Williams

The U.S. Court of Appeals for the Third Circuit recently confirmed that bankruptcy plans need not always recognize subordination agreements among creditors.

363 Sales as a Health Care M&A Tool, Part 1 – Overview

July 28, 2020 | Blog | By Deborah Daccord, William Kannel, Tim McKeon

Although health care may be well positioned to weather an economic downturn as an industry, certain sectors, including ambulatory surgery, vision, dermatology, dental, and other physician practices will bear the brunt of COVID-19 stay-at-home orders and patients delaying non-emergency care. While the onset of COVID-19 has delayed or derailed many transactions, strategic buyers should consider all of the different transaction tools available them to help maximize value and successfully get to closing. For knowledgeable investors and strategic buyers, now is the time to position yourself to acquire valuable health care assets at steep discounts.

For those unfamiliar with 363 Sales, a 363 Sale couples a flexible and fast process with ample liability protection for willing buyers. The primary benefit to a 363 Sale is that a buyer can acquire the debtor’s assets free and clear of virtually all liens, claims and encumbrances burdening the assets and the debtor. When a target is experiencing severe financial distress, the benefit of acquiring assets “free and clear of all liens” is extraordinarily valuable.

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March 28, 2024 | Blog | By Jacklyn Branby

February 21, 2024 | Blog | By Dallas Taylor

July 7, 2023 | Blog | By Kaitlin R. Walsh

April 25, 2023 | Blog | By Dallas Taylor

December 21, 2022 | Blog | By Dormie Ko

November 10, 2022 | Blog | By Rachel Sposato

July 18, 2022 | Blog | By Dallas Taylor

May 5, 2021 | Blog | By Caitie Hill, Tim McKeon, Samuel M. Tony Starr

April 16, 2021 | Blog | By Andrew B. Levin

April 1, 2021 | Blog | By Andrew B. Levin, William Kannel

Part 3: Congress Gives Suppliers and Landlords a Shiny New Arrow in their Quiver to Challenge Preference Actions

February 2, 2021 | Blog | By Joseph Dunn, Abigail O'Brient

Part 2: Amendments Affecting Landlords

January 29, 2021 | Blog | By Andrew B. Levin, Abigail O'Brient

Part 1: Amendments Clarifying Debtors’ Rights to Other Pandemic Relief

January 26, 2021 | Blog | By Andrew B. Levin, Abigail O'Brient

January 21, 2021 | Blog | By Eric Blythe

December 1, 2020 | Blog | By Tim McKeon

November 5, 2020 | Blog | By Aaron Williams

September 11, 2020 | Blog | By Deborah Daccord, William Kannel, Tim McKeon

September 4, 2020 | Blog | By Aaron Williams

July 28, 2020 | Blog | By Deborah Daccord, William Kannel, Tim McKeon

June 2, 2020 | Blog | By Andrew Matzkin, Kaitlin R. Walsh, William Kannel

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Abigail O'Brient

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