Features

Harmonizing a Debtor’s Right to File for Bankruptcy Against a Creditor’s Desire to Protect Its Financial Interests
How to harmonize a debtor’s right to file against a creditor’s desire to protect its financial interests in that debtor has sparked a number of different judicial opinions.
Features

Empty Bankruptcy Win for Commercial Landlord
In In re Sears Holdings Corporation, the Second Circuit apparently ended a multi-year litigation by affirming the district court’s decision that the landlord’s appeal was “moot for lack of a remedy because, although [that] court [had properly] vacated the assignment and assumption of the lease …, the lease would not revert to [the landlord under Code] §365(d)(4), and that [the landlord] had no alternative remedy.”
Features

Rising Bankruptcy Filings Make Today’s Headlines, But Keep An Eye on Historic Policies
Nearly 50 years has passed since the last major change in bankruptcy law. The financial landscape now where debtors go through bankruptcy is very different. Is the Bankruptcy Code still achieving its fundamental goals, and are there ways to improve it?
Features

Beyond Bordeaux’s Bankruptcy: A Lesson In Adapting to the Evolving Sports Media Landscape
Word that the historic French franchise Girondins de Bordeaux filed for bankruptcy recently rocked European football. But one force in particular poses an even broader threat to the sustainability of the elite level of French soccer than relegation: media rights.
Features

Court Rules Mere Conduit Defense Not Suitable for a Motion to Dismiss
At the motion to dismiss stage, courts usually won't consider affirmative defenses. This issue arose recently in a preferential transfer case, where a defendant sought to dismiss a complaint by arguing it was a mere conduit, not an initial transferee.
Features

Credible Fraudulent Transfer Advocacy
Appellate courts continue to use common sense when disposing of constructively fraudulent transfer appeals, as recent decisions show.
Features

Avoiding Double-Dipping: U.S. Trustee Fees and Creditor Trusts
The U.S. Trustee has recently taken the position that GUC Trusts (disbursements made by creditor trusts formed under bankruptcy plans) should be required to pay fees on account of their own disbursements to creditors. The outcomes in three recent bankruptcy cases highlight different approaches to addressing the U.S. Trustee's argument: closing bankruptcy cases early, deferring the issue to a later date, or focusing on the distinction between contingent and non-contingent assets.
Features

The Future Viability of 105(a) Injunctions Following the Supreme Court's Decision In 'Purdue Pharma'
Until now, a successful reorganization assumed the debtor could confirm a plan with nondebtor releases and injunctions based on less than full creditor consensus. Now that nonconsensual releases in Chapter 11 plans are no longer permitted, will debtors have a more difficult time obtaining a 105(a) injunction?
Features

Appellate Courts Skeptical About Bankruptcy Court Sanctions
Recent appellate decisions reflect a distaste for appeals from bankruptcy court sanction orders. A split Fourth Circuit even refused to hear such an appeal. Other courts tend to limit sanctions or, alternatively, accept a bankruptcy judge's findings under a stringent "abuse of discretion" standard.
Features

Courts Split Over Requirement for Chapter 15 Jurisdiction In the U.S.
If a foreign debtor doesn't reside in, have a domicile or place of business in, or have property in the U.S., can the foreign representative of the debtor utilize Chapter 15 to obtain discovery to use in the foreign proceeding?
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