The South Bay Law Firm Law Blog highlights developing trends in bankruptcy law and practice. Our aim is to provide general commentary on this evolving practice specialty.

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      Bankruptcy and Insolvency News and Analysis Week Ending November 13, 2015
    Bankruptcy and Insolvency News and Analysis Week Ending November 6, 2015
    Bankruptcy and Insolvency News and Analysis Week Ending October 30, 2015
    Bankruptcy and Insolvency News and Analysis Week Ending October 23, 2015

    Bankruptcy and Insolvency News and Analysis – Week Ending November 6, 2015

    Saturday, November 7th, 2015

    Crisis and failure concept


    The Polsinelli|TrBK Distress Indices for 3rd Quarter 2015

    AACER: Bankruptcy Filings Climb in October

    DIP Finance

    Banks Beware: DIP Loans May Prime Setoff Rights


    Recent Opinions Bring Sharper Focus to the Time Barred Proof of Claim Dilemma


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    Bankruptcy and Insolvency News and Analysis – Week Ending October 30, 2015

    Sunday, November 1st, 2015



    BAPCPA at 10: Was It Good or Bad?

    Bankruptcy Filings declined 11% in Fiscal 2015, Lowest Filings since 2007

    Avoidance and Recovery

    In re MCK Millennium: Court Vacates Landmark 546(e) Safe Harbor Decision

    House Wins! 7th Circuit Holds that “Good Faith” Defense Under Section 550(b)(1) Applies to Casino in Fraudulent Transfer Action

    Distressed Investing

    As Defaults Rise, Distressed-Debt Investors Seek an Edge by Buying the DIP

    Bankruptcy 101 for Investors: Acquiring a Debtor’s Assets in a Bankruptcy Case

    Related Articles

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    Bankruptcy and Insolvency News and Analysis – Week Ending September 25, 2015

    Friday, September 25th, 2015


    Great Recession - 1

    Case Commencement

    Guernsey Dairy Opinion – Allowing WARN Claims to Arise May Breach a Director’s Duty

    Venue and Compensation

    Stakeholders Have Mixed Views on Attorneys’ Fee Guidelines and Venue Selection for Large Chapter 11 Cases

    What Happens In The Bahamas – – Stays In The Bahamas

    Creditors’ Expenses Can Be Reimbursed in Ch. 7 Case

    Automatic Stay

    District Court Holds that Assignee is Not Entitled to Safe Harbor Protections

    Claims and Administrative Expenses

    Checkmate: Trumping a Supplier’s Administrative Claim



    Third Circuit Approves Use of Escrow Agreements Funded by Acquirers to Pay Junior Creditors Before Senior Creditors

    So Long as It’s Your Own Money — Third Circuit Allows Secured Creditors to Gift Value to Junior Creditors to Resolve Sale Objection Even When More Senior Creditors Receive Nothing

    Confirmation and Discharge

    Putative Class Actions in Bankruptcy for Violations of the Discharge Injunction and Bankruptcy Code Section 524(j)

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    Bankruptcy and Insolvency News and Analysis – Week Ending September 11, 2015

    Saturday, September 12th, 2015


    Claims and Priorities

    “Conduct” Test Now the Rule in the Seventh Circuit – But We Still Don’t Know How the Seventh Circuit Will Deal With Due Process Concerns

    Decoding the Code: Bankruptcy Code Section 510(a) – Subordination Agreements in Bankruptcy

    Fail to ‘Notice’ an Objection to Your Proof of Claim? Too Bad Says the Bankruptcy Court

    Avoidance and Recovery

    Overview of the Landscape for Evaluating Creditors’ Breach of Fiduciary Duty Claims in Delaware

    The Good Faith Transferee Defense and Publicly Traded Securities


    Bankruptcy Court Authorizes Hellas II Liquidators to Proceed with Claims against Apax, TPG and Others

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    Bankruptcy and Insolvency News and Analysis – Week Ending August 14, 2015

    Friday, August 14th, 2015


    Avoidance and Recovery

    Assumption/Assignment of Contracts – Preference Defense

    Fraudulent Transfer, Breach of Fiduciary Duty Claims Constitute Equitable Tolling


    Chapter 11 Sales: Believe It Or Not, There Really Are Limits

    Transferring Customer Data in an Asset Sale


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    Bankruptcy and Insolvency News and Analysis – Week Ending July 31, 2015

    Friday, July 31st, 2015



    Fitch: U.S. Consumer Bankruptcies Set to Fall to Eight-Year Low

    Bankruptcy Filings Down 12 Percent Since Last June


    Credit Bidding: Not An Absolute Right (And What Does That Mean?)

    Avoidance and Recovery

    The Fifth Circuit Declares A Mulligan In The Golf Channel “Innocent Transferee” Case


    Tenth Circuit Declares “No Recharacterization Without Justification”


    SDNY Sides with Fifth Circuit and the UNCITRAL Model Law when Granting Recognition to OAS S.A. et al.

    OAS S.A. Part II – SDNY Holds That Austrian Financing Subsidiary Has Its Center of Main Interests in Brazil

    OAS Chapter 15 decision sheds new light on cross-border insolvency practice, but may add complexity to financial institutions’ global credit risk management


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    Debt Equity: Recharacterization of Debt in Bankruptcy Proceedings – And What To Do About It

    Thursday, July 30th, 2015


    How can an ostensible lending transaction be recharacterized later on as an equity investment?

    When a client decides to extend debt funding to a struggling venture that finds itself in bankruptcy, this loan can later be “recharacterized” as equity, leaving your client to wait at the back of the line behind “true” lenders and lienholders.

    On Tuesday (7/28), colleagues Victor Sahn and Jeff Pomerance of SulmeyerKupetz Professional Corporation joined me and about 30 of our friends for a webinar discussion on debt-equity recharacterization and the related (but distinct) concept of claim subordination in bankruptcy.

    View it here.

    Update:  A 3-judge panel of the Tenth Circuit Court of Appeals has very recently issued a decision on this issue (available here), upholding prior authority and deciding a request for recharacterization in favor of the creditor.  Along the way, the Tenth Circuit acknowledged a split in the Circuits over the basis for Bankruptcy Courts’ authority to recharacterize claims.  Will we see a trip to the Supreme Court?

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    Bankruptcy and Insolvency News and Analysis – Week Ending June 26, 2015

    Friday, June 26th, 2015



    Difficulties in Pursuing Non-Bankruptcy Litigation in Bankruptcy Court

    Corporate Governance

    The LLC Member In Bankruptcy: Ehmann And Its Progeny

    Claims Objection And Subordination

    Mandatory Subordination of Claims Arising from the Purchase or Sale of Securities

    Can You Object to a Claim Just Because It Doesn’t Include Supporting Documentation? The Answer May Not Be as Simple as You Think

    Avoidance and Recovery

    Everything Has Its Own Value: 7th Circuit Holds That Forbearances by a Lender May Be Considered When Determining Reasonably Equivalent Value


    Insight – Trucker’s bankruptcy exit may roughen road for small creditors


    Raising a Drawbridge Objection: Eligibility in Chapter 15 Cross-Border Insolvency Cases

    Related Articles

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    Bankruptcy and Insolvency News and Analysis – Week Ending June 5, 2015

    Friday, June 5th, 2015

    Down With the Rich


    May Commercial Chapter 11 Bankruptcies Increase 16%

    Quick Bankruptcy Exit May Lead to Return Trip, Professionals Say

    Unsecured Claims

    Setoffs – Cutting Your Losses Both Inside and Outside Bankruptcy

    Secured Claims

    United States Supreme Court Begrudgingly Extends Dewsnup Decision

    You’re Late! You’re Late! For a Very Important Date! Seventh Circuit Holds Bankruptcy Rule 3002(c) Deadline to File Proofs of Claim Applies to Secured Claims

    The ABI Commission on Reform of Chapter 11 Final Report: What Secured Creditors Need to Understand

    Recent Unitranche Issues in the RadioShack Bankruptcy Case

    Fodder for the Dinner Table: The Rights of Secured Creditors in Chapter 11


    Spoken in Your Office, Read in the Courtroom: What Corporate Officers and Trustees Need to Know About the Waiver of the Attorney-Client Privilege in Bankruptcy


    In re Jevic Holding Corp: Third Circuit Allows Structured Dismissal of Chapter 11 Case that Violates the Bankruptcy Code’s Priority Scheme

    Related Articles

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    Insolvency News and Analysis – Week Ending May 15, 2015

    Friday, May 15th, 2015



    Chapter 11 Duration, Preplanned Cases and Refiling Rates: An Empirical Analysis in the Post-BAPCPA Era

    From the Abstract: 

    “This article empirically examines and quantifies the effect of the Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPCPA”) on three distinct aspects of the Chapter 11 process: a) the duration of traditional Chapter 11 cases; b) the use of prepackaged and prenegotiated bankruptcies; and c) debtor refiling rates. The sample studied consists of companies with more than $100 million in assets that both filed for and exited Chapter 11 between 1997 and 2014. BAPCPA is found to be associated with shorter Chapter 11 case duration, and an increased use of prepackaged and prenegotiated bankruptcies. Additionally, BAPCPA is found to be associated with an increase in the proportion of firms that soon refile for bankruptcy. It seems that the 2005 amendments force the debtor to emerge hastily from its Chapter 11 proceedings, ignoring operational and structural problems and, therefore, not achieving true rehabilitation.”


    Avoidance and Recovery

    Securitized Loan Payments Safe Harbored Under Section 546(e)

    Ninth Circuit Insulates Corporate Insider from Preference Liability

    Bankruptcy Court Analyzes Preference and Fraudulent Transfer Claims as Applied to the Termination of a Lease



    In re Motors Liquidation Co: SDNY Bankruptcy Court Denies Successor Liability Claims Against New GM for Ignition Switch Defect


    Court Reiterates that Debtor’s Setoff Rights Trump those of Claimant


    Chapter 15 Cross-Border Insolvency Means Comity and Cooperation; Not Necessarily Comedy and Concern

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