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Creditor Recoupment
The U.S. Court of Appeals for the Eighth Circuit recently held that equitable considerations could not prevent a creditor's recouping of amounts owed to it by a Chapter 7 debtor. Terry v. Standard Ins. Co. (In re Terry), 2012 WL 3139364, *4 (8th Cir. Aug. 3, 2012). Reversing the bankruptcy court and the Bankruptcy Appellate Panel (“BAP”), the Eighth Circuit explained that “once a party meets the same-transaction test ' a court should not impose an additional 'balancing of the equities' requirement” on the doctrine of recoupment. Id. Ending a three-year battle in three courts over the sum of $45,316, the court's straightforward ruling resulted in a win for a disability insurer over a disabled individual. In reality, however, nobody won.
What Is Recoupment?
“Recoupment allows a defendant to deduct its claim from the amount the plaintiff could otherwise recover if the claim arises out of the same transaction or subject matter on which the plaintiff sued.” Id. at *2, citing In re NWFX, Inc., 864 F.2d 593 (8th Cir. 1989). The doctrine comes not from the Bankruptcy Code (“Code”), but is a common law rule permitting a creditor to reduce its liability by the amount of the debtor's obligation to the creditor so long as the two debts arise out of the same transaction. See, e.g., In re Anes, 195 F.3d 177, 182 (3d Cir. 1999); Newberry Corp. v. Fireman's Fund Ins. Co., 95 F.3d 1392, 1399 (9th Cir. 1996).
Yachts, Jets, Horses & Hooch: Specialized Commercial Leasing Models
Defining commercial real estate asset class is essentially a property explaining how it identifies — not necessarily what its original intention was or what others think it ought to be. This article discusses, from a general issue-spot and contextual analysis perspective, how lawyers ought to think about specialized leasing formats and the regulatory backdrops that may inform what the documentation needs to contain for compliance purposes.
Hyperlinked Documents: The Latest e-Discovery Challenge
As courts and discovery experts debate whether hyperlinked content should be treated the same as traditional attachments, legal practitioners are grappling with the technical and legal complexities of collecting, analyzing and reviewing these documents in real-world cases.
Identifying Your Practice's Differentiator
How to Convey Your Merits In a Way That Earns Trust, Clients and Distinctions Just as no two individuals have the exact same face, no two lawyers practice in their respective fields or serve clients in the exact same way. Think of this as a "Unique Value Proposition." Internal consideration about what you uniquely bring to your clients, colleagues, firm and industry can provide untold benefits for your law practice.
Risks and Ad Fraud Protection In Digital Advertising
The ever-evolving digital marketing landscape, coupled with the industry-wide adoption of programmatic advertising, poses a significant threat to the effectiveness and integrity of digital advertising campaigns. This article explores various risks to digital advertising from pixel stuffing and ad stacking to domain spoofing and bots. It will also explore what should be done to ensure ad fraud protection and improve effectiveness.
Turning Business Development Plans Into Reality
This article offers practical insights and best practices to navigate the path from roadmap to rainmaking, ensuring your business development efforts are not just sporadic bursts of activity, but an integrated part of your daily success.