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 October 2, 2015
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    Bankruptcy and Insolvency News and Analysis – Week Ending October 2, 2015

    Friday, October 2nd, 2015

    Panic in the Pit

    Claims, Avoidance and Recovery


    Sometimes You Want To Be Ordinary: Restructuring Payment of Past Due Accounts to Avoid Bankruptcy Preference Liability

    Litigating the Ordinary Course of Business Defense – Summary Judgment and the Stanziale v. Industrial Specialists Decision

    Executory Contracts

    Beggars Can’t Be Choosers: Delaware Debtors Not Allowed To Selectively Reject Parts Of An Integrated Contract

    Who Gets Paid? Section 365(n) Royalty Payments Under ‘Zombie Licenses’ after a Sale of IP


    Is an Old Bond Law Complicating Restructurings?

    Prepackaged Bankruptcy: Is It Right for Your Company?

    Professional Compensation


    Corporate Governance

    Thinking About Directors’ Duties and Directors’ Liabilities


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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 7, 2015

    Friday, August 7th, 2015

    Burning 20


    July Commercial Chapter 11 Filings Increase 77 Percent from 2014

    Claims And Litigation

    Just Follow the Rules!  FRCP amendments could be e-discovery game changer

    Officer/Director Breach of Duty: If Things Get Bad Enough, There May Be Recourse

    Avoidance and Recovery

    Ordinary Course of Business Defense Further Examined – Burtch v. Revchem Composites, Inc.

    In a Case of First Impression at the Circuit Level, Ninth Circuit Holds an Insider Who Waives his Right to Indemnification from the Debtor is not a “Creditor” for Purposes of Preferential Transfers Under Sec. 547 of the Bankruptcy Code


    The ABI Commission on Business Bankruptcy Reform: The Sale of All or Substantially All of the Debtor’s Assets and Proposed Creation of “Section 363(x)”



    Structured Dismissals Part IV – Bells & Whistles: Sweetening the Pot and Drawing Objections

    Post-Bankruptcy Investing & Chapter 22s: Iconic Branding Alone Is Not Enough


    OAS S.A. Part III – SDNY Takes a Narrow View of Chapter 15’s Public Policy Exception

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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

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    Bankruptcy and Insolvency News and Analysis – Week Ending June 19, 2015

    Friday, June 19th, 2015

    Uncle Sam is Broke


    Return of the Turnaround?

    Polsinelli’s Jim Bird talks top five distressed industries

    Secured Claims

    Video Interview: Discussing Bank of America v. Caulkett, Supreme Court Ruling Survives Bankruptcy


    Losing Momentive: A Roadmap to Higher Cramdown Interest Rates

    Can You Vote More Than Once? The Bankruptcy Code’s Current “Numerosity” Standard Under § 1126(c) and Possible Reform

    Cramdown Hurdles Round 3: Try, Try Again

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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

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    Bankruptcy and Insolvency News and Analysis – Week Ending May 29, 2015

    Friday, May 29th, 2015

    Run on the Bank

    Jurisdiction and Procedure

    All’s Wellness That Ends Well?: Supreme Court Permits Parties To Consent To Bankruptcy Court’s Entry Of Final Judgment On Stern Claims

    2015 Amendments to the Federal Rules and Potential Changes in 2016


    Third Circuit Authorizes Structured Dismissal of Chapter 11 Case


    New Focus On Cross-Border Restructuring Of Groups For The Recast EC Regulation On Insolvency Proceedings


    DTEK Restructuring Scheme Opens Door For Global Bond Issuers To Bypass Chapter 11

    The International Comparative Legal Guide to Lending & Secured Finance 2015

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    Insolvency News and Analysis – Week Ending May 8, 2015

    Friday, May 8th, 2015

    2015-05-08 -  War of Wealth


    Commercial Chapter 11 Bankruptcies Drop 41% in April

    Avoidance and Recovery

    Payments to Investors in a Securitization Structure Protected from Avoidance


    ABI Commission Report – Exculpatory Clauses in Plans

    Distributions – Section 1143

    Supreme Court Bankruptcy Decision Strengthens Creditor Leverage in Plan Negotiations


    A Comparative Overview of Transatlantic Intercreditor Agreements

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