Turning A Blind Eye Cost Lender Hundreds Of Millions Of Dollars; Inquiry Notice Spoils Lender’s Good Faith Defense In Fraudulent Transfer Case
February 12, 2016 | Blog | By Kevin Walsh
Lending credence to the old adage “if it’s too good to be true, then it probably is,” the Seventh Circuit Court of Appeals recently held that a secured lender was on inquiry notice of possible fraud by its borrower in impermissibly pledging customers’ assets to secure loans.
January 26, 2016 | Blog | By Eric Blythe
It is a familiar scenario: a company is on the verge of bankruptcy, bound by the terms of a collective bargaining agreement (CBA), and unable to negotiate a new agreement. However, this time, an analysis of this distressed scenario prompted a new question: does it matter if the CBA is already expired, i.e., does the Bankruptcy Code distinguish between a CBA that expires pre-petition versus one that has not lapsed?
January 22, 2016 | Blog | By Amanda M. Blaske
In SGK Ventures, LLC, the Bankruptcy Court for the Northern District of Illinois ordered that the secured claims of two entities controlled by insiders of the debtor be equitably subordinated to the claims of unsecured creditors.
January 14, 2016 | Blog | By Adrienne K. Walker
Check out the recent American Bankruptcy Institute Journal cover article in which Rick Mikels and Adrienne Walker explore the circumstances under which a stay pending appeal is appropriate, with a particular focus on 363 sales, through an analysis of the Third Circuit’s decision in In re Revel AC Inc.
Que Certa, Certa: Supreme Court’s Review of Puerto Rico Recovery Act May Hinder Creditor Negotiations
December 8, 2015 | Blog | By Leonard Weiser-Varon, William Kannel, Eric Blythe
It is said that muddy water is best cleared by leaving it be. The Supreme Court’s December 4 decision to review the legality of Puerto Rico’s local bankruptcy law, the Recovery Act, despite a well-reasoned First Circuit Court of Appeals opinion affirming the U.S. District Court in San Juan’s decision voiding the Recovery Act on the grounds that it conflicts with Section 903 of the U.S. Bankruptcy Code, suggests, at a minimum, that at least four of the Justices deemed the questions raised too interesting to let the First Circuit have the last word.
December 1, 2015 | Blog | By Kevin Walsh
Many of us have endured the nightmare of a disastrous home renovation or at least enjoyed Tom Hanks in The Money Pit (How long? Two weeks, of course). Well imagine spending half a million dollars, not for a new and improved home, but rather chasing your contractor for paid, but never completed, work.
November 2, 2015 | Blog | By Eric Blythe
Working for the Queen of Hearts is a tough gig. A disappointing quarter and she's quick to the chopping block. And the 'severance' she offers - "Off with their heads!" - no thanks.
October 28, 2015 | Blog | By William Kannel
Bill Kannel was recently quoted in The Deal's article “Taking bankruptcies too fast around the curve” regarding the growing trend of shorter, preplanned Chapter 11 cases. Experts debate the causes and effects including a potential link between case length and refilings as companies skim over key structural and operational issues in favor of more dynamic and immediate fixes.
A WARNing to Directors and Officers — Failure to Give Proper WARN Act Notice May Breach Your Fiduciary Duty
October 9, 2015 | Blog | By Kevin Walsh
At first glance, Stanziale v. MILK072011, looks like someone suing over a bad expiration date and conjures up images of Ron Burgundy proclaiming “Milk was a bad choice.” But in actuality Stanziale is much more interesting: it answers whether one can breach their fiduciary duty by exposing an employer to a claim under the aptly-named WARN Act, which requires employers to tip off their workers to a possible job loss.
September 28, 2015 | Blog | By John H. Bae, Kaitlin R. Walsh
In a recent New York Law Journal article, “The Evolution of Fiduciary Duties Under Delaware Law”, John Bae and Kaitlin Walsh describe the ongoing development of Delaware law regarding directors’ duties and provide guidance to directors of corporations facing insolvency.
September 28, 2015 | Blog | By William Kannel
Last week, the Working Group for the Fiscal and Economic Recovery of Puerto Rico gave the broadest hint yet of the next tactic in Puerto Rico’s ongoing quest to deleverage itself.
September 21, 2015 | Blog | By Kevin Walsh
Generally, once a plan of reorganization is confirmed and substantially consummated, an appellate court will not “unscramble the egg” and grant appellate relief if doing so would harm third parties that relied on the confirmation order.
August 31, 2015 | Blog | By Kevin Walsh
In our prior post, we discussed the standard a creditor must meet to sue an insolvent corporation for breach of fiduciary duties, as laid out in the Quadrant Structured Products Co., Ltd. v. Vertin decision.
August 21, 2015 | Blog | By Daniel S. Bleck
Dan Bleck was quoted in the Modern Healthcare article “Hospitals remain stressed, but don’t blame the ACA” addressing the misconception that the Affordable Care Act is the reigning force pushing healthcare providers into bankruptcy.
August 3, 2015 | Blog | By Eric Blythe
A Delaware bankruptcy court held in In re Ferris Properties, Inc. that the debtors could not sell their property free and clear of the secured lender’s mortgages because the lender would not be paid in full from the proceeds of the sale. Specifically, the Court held that the lender could not be compelled to accept a money satisfaction of its interests under section 363(f)(5), and that the lender did not consent to the sale under section 363(f)(2).
July 21, 2015 | Blog | By Eric Blythe
In the recent Third Circuit decision in In re Jevic Holding Corp. the Court of Appeals ruled that, in rare circumstances, settlements in bankruptcy cases can be approved even if they result in junior creditors receiving a distribution before senior creditors are paid in full (i.e., even if the settlement violates the "absolute priority rule").
Did The Supreme Court Finally Explain Stern? Examining the Wellness of Bankruptcy Court Jurisdiction
July 21, 2015 | Blog
The Supreme Court has spoken once again on the limited jurisdiction of the bankruptcy courts, adding to the understanding derived from previous cases. Wellness International Network, Ltd., et al. v. Sharif is the Supreme Court’s sixth significant case exploring bankruptcy court jurisdiction under the Bankruptcy Code.
July 21, 2015 | Blog | By Kevin Walsh, Chip Phinney
The Delaware Court of Chancery recently held that, for a creditor to have standing to bring a derivative breach of fiduciary duty action, the creditor need only establish that the corporation was insolvent at the time the creditor’s action was filed—not that the corporation continued to be insolvent until the date of judgment.
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