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Fifth Circuit Subordinates Claim for Deemed Dividends Image

Fifth Circuit Subordinates Claim for Deemed Dividends

Michael L. Cook

"… [P]ayments owed to a shareholder by a bankrupt debtor, which are not quite dividends but which certainly look a lot like dividends, should be treated like the equity interests of a shareholder and subordinated to claims by creditors of the debtor," held the U.S. Court of Appeals for the Fifth Circuit.

Features

8th Circuit Affirms Dismissal of Lawsuit Attacking Approved Bankruptcy Sale Image

8th Circuit Affirms Dismissal of Lawsuit Attacking Approved Bankruptcy Sale

Andrew C. Kassner & Joseph N. Argentina Jr. 

Sales of substantially all of a debtor's assets are commonplace in corporate Chapter 11 bankruptcies. The sale is supervised and approved by the Bankruptcy Court. Purchasers desire to know that if the sale is consummated, they will be protected from subsequent attacks on the sale and the sale process and presumably more bidders will participate, resulting in greater returns for the estates and creditors. Issues surrounding the finality of a bankruptcy sale were recently reviewed by the U.S. Court of Appeals for the Eighth Circuit.

Features

Something to Remember: The Flexibility of Chapter 11 in Retail Situations Image

Something to Remember: The Flexibility of Chapter 11 in Retail Situations

Christopher T. Greco, Spencer A. Winters & Derek I. Hunter

In the face of increasing pressure from online retailers, and declining foot-traffic in malls and other brick-and-mortar locations, distressed retailers like Things Remembered need to act expeditiously to execute going-concern transactions if they are going to survive the market disruption.

Features

Mitigating Lender Risk in Constructive Fraudulent Transfer Litigation Image

Mitigating Lender Risk in Constructive Fraudulent Transfer Litigation

Arthur Steinberg & Michael R. Handler

Lenders must carefully analyze the full ramifications of how best to approach the constructive fraudulent transfer issue when it emerges in their bankruptcy case.

Features

Third Circuit Clarifies Appeal Process in Settlement and Reorganization Plan Disputes Image

Third Circuit Clarifies Appeal Process in Settlement and Reorganization Plan Disputes

Michael L. Cook

The Third Circuit recently took a "pragmatic approach" when affirming lower court orders denying a stay of bankruptcy settlement distributions pending appeal. After holding that the district court's "stay denial order" was "final" for jurisdictional purposes, it also confirmed "the applicable standard of review" on motions for stays pending appeals.

Features

Lessor Repossession of Property on Eve of Lessee Bankruptcy Image

Lessor Repossession of Property on Eve of Lessee Bankruptcy

Theresa A. Driscoll

Voluntary Turnover or Face Contempt Lessors who repossess property immediately prior to a lessee bankruptcy filing may be required to return such property or face sanctions by the bankruptcy court. Federal courts are currently split on the issue of whether the lessor must voluntary surrender property seized pre-petition or may hold such property until such time as the debtor seeks, and obtains, an order of turnover.

Features

Fourth Circuit: Debt Incurred As a Result of Willful and Malicious Injury May Be Dischargeable Image

Fourth Circuit: Debt Incurred As a Result of Willful and Malicious Injury May Be Dischargeable

Rudolph J. Di Massa Jr. & Drew S. McGehrin

The U.S. Court of Appeals for the Fourth Circuit recently held that a debt incurred as a result of a willful and malicious injury may nevertheless be dischargeable notwithstanding the provisions of 11 U.S.C. Section 523(a)(6).

Features

Resolving the Competing Desires of Buyers and Tenants In Bankruptcy Image

Resolving the Competing Desires of Buyers and Tenants In Bankruptcy

Daniel A. Lowenthal

A Tension Between §§363(f) and 365(h) How do bankruptcy judges resolve the competing desires of buyers and tenants? Must buyers bid for property knowing that tenants might have the right to stay if their leases are rejected? Are tenants in jeopardy that they might have to move elsewhere to live or work?

Features

Bankruptcy Court Rules U.S. Trustee Amended Fee Schedule Unconstitutional Image

Bankruptcy Court Rules U.S. Trustee Amended Fee Schedule Unconstitutional

Francis J. Lawall & Marcy J. McLaughlin

The Office of U.S. Trustee is known among practitioners as the "watchdog" of the bankruptcy process. To fund the U.S. Trustee, Chapter 11 debtors must pay quarterly fees. Following a recent substantial increase to the U.S. Trustee fee schedule, the U.S. Bankruptcy Court for the Eastern District of Virginia found the amended fee schedule to be unconstitutional because it was being applied nonuniformly to Chapter 11 debtors around the country.

Features

Lessor Repossession of Property on Eve of Lessee Bankruptcy: Voluntary Turnover or Face Contempt Image

Lessor Repossession of Property on Eve of Lessee Bankruptcy: Voluntary Turnover or Face Contempt

Theresa A. Driscoll

Lessors who repossess property immediately prior to a lessee bankruptcy filing may be required to return such property or face sanctions by the bankruptcy court. Federal courts are currently split on the issue of whether the lessor must voluntary surrender property seized pre-petition or may hold such property until the debtor obtains an order of turnover.

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