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When a creditor obtains a judgment against a debtor, the debtor's assets are sometimes held in membership interests in an LLC, which presents challenges for the creditor seeking recovery. The Uniform LLC Law provided for a charging order in such instances. Although the precise terms of each state's LLC laws vary, some version of the charging order procedure is available in all states.
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The U.S. Bankruptcy Court for the District of Delaware recently ruled that choice of law and venue selection provisions in a contract between a U.S. creditor and Italian debtor did not trump the debt restructuring plan approved by an Italian bankruptcy court.
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Bankruptcy is a fact of life in the United States. When it happens, the treatment of a lease as either residential or non-residential may be crucial to all parties -- landlords, tenants, subtenants and their counselors.
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As of Jan. 1, 2018, each jointly administered debtor with quarterly disbursements of at least $1,000,000 must pay a fee of 1% of all disbursements, up to $250,000 per quarter. Although this change in the law was only intended to address shortfalls in UST funding, it has taken a little-noticed component of bankruptcy and magnified it into a ticking tax-bomb for unsuspecting debtors and their lenders.
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In a recent decision, Bankruptcy Judge Christopher S. Sontchi addressed the question of whether a Chapter 11 debtor, the tenant under a commercial lease, could exercise an option to renew the lease during the bankruptcy proceedings, even though the debtor was in default under the lease and the lease specified that it could not be renewed if defaults existed at the time the option was exercised.
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In a case of first impression at the circuit level, the United States Court of Appeals for the Ninth Circuit held that section 1129(a)(10) of the Bankruptcy Code — which requires a favorable vote of at least one impaired class of creditors in order to confirm a Chapter 11 plan — applies on a “per-plan” basis, rather than a “per-debtor” basis.
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Ultimately, <i>Village at Lakeridge</i> is noteworthy for what the Supreme Court did not decide. In granting <i>certiorari</i>, the Supreme Court declined to address whether the lower courts' various “non-statutory insider” tests should be refined. As concurrences from Justices Sotomayor and Kennedy emphasized, though, that issue is ripe for increased scrutiny.
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It's not uncommon for rights licensees in the entertainment industry to find themselves in a rights dispute when a licensor files for bankruptcy.
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<b><i>The First Circuit Widens the Controversy</b></i><p>In <i>In re Tempnology</i>, the First Circuit held that the debtor's rejection of a trademark license strips the nondebtor licensee of any right to continue to use the trademarks. In so doing, the court takes the same approach as the Fourth Circuit and rejects the approaches advocated by the Third and Seventh Circuits.
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The Supreme Court's decision and analysis are instructive for both bankruptcy and corporate practitioners, and will likely yield significant returns for estate beneficiaries.