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 February 5, 2016
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    Bankruptcy and Insolvency News and Analysis – Week Ending February 5, 2016

    Monday, February 8th, 2016

    Houses and Money

    Sales

    Managing the Preparation, Delivery and Review of the Disclosure Schedule in Section 363 Transaction Can Help Avoid a Shipwreck

    Claims

    Subordination of Claims Under Bankruptcy §510(B)

    Bankruptcy Law News: Reclamation or Section 503(b)(9) Claim? – A Potential Trap

    Secured Claims

    In re Domistyle, Inc.: When Is a Section 506(c) Surcharge Appropriate?

    Avoidance and Recovery

    Fraudulent Transfers In Hypnotic Taxi

    Confirmation

    Ninth Circuit Follows the Lead on Absolute Priority Rule

    Unsecured Creditor Wins Over Individual Ch. 11 Debtor

    Cross-Border

    Cross-Border Closing Opinions of U.S. Counsel

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    Bankruptcy and Insolvency News and Analysis – Week Ending January 15, 2016

    Sunday, January 17th, 2016

    Financial Crisis Logo

    Trends and Legislation

    AACER: Pardon the Interruption. . .Bankruptcy Filings Resume Their Decline

    Bankruptcy Filings Declined 10 Percent in 2015

    2015 Bankruptcy Recap: 46% Increase Fueled By Oil & Gas/Mining Industry – Analysts Predict Further Uptick

    Examining Proposed Chapter 11 Reforms Through the Lens of Recent Retail Cases

    Post-Petition Operations

    Is a “Sound Business Purpose” Always Enough?

    Sales

    Faced with a Belated Offer for the Debtor’s Assets, Bankruptcy Court Converts the Case to Chapter 7 to Allow a Trustee to Run the Sale Process

    Avoidance Actions

    PREFERENTIAL TRANSFER LAWSUITS BY NEW BORROWERS/DEBTORS — IS IT GAME OVER ON THE ORDINARY COURSE DEFENSE?

    Red Flag Warnings: Ignore Them At Your Peril

    UCC Financing Statements: The Ins and Outs of “Authorization”

    Claims

    Claims Trading Warps the Bankruptcy System

    Dismissal

    ‘Sketchy Activity’ Gets Bankruptcy Case Dismissed

    Cross-Border

    Regulations, Roadmaps and Recommendations: The Latest Developments in the Harmonisation of Global Insolvency Laws

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    Bankruptcy and Insolvency News and Analysis – Week Ending January 8, 2016

    Saturday, January 9th, 2016

    US_Private_Debt_to_GDP_by_Sector

    Current Developments/Trends

    Commercial Bankruptcy: Selected 2015 Cases of Interest to Banking and Finance

    Bankruptcy Filings Drop 10% in 2015

    Restructuring Activity to Be Boosted By Flagging Commodities in 2016

    Energy, Retail, Healthcare and Education Facing the Most Distress, Says AlixPartners Restructuring Survey

    Sales

    Court Sets Aside 21-Year Old Bankruptcy Sale for Fraud on the Court Despite Absence of Specific Allegations That Fraud Reduced the Sale Price!

    Sale of Substantially All of Debtor’s Assets Cannot Be Approved in a Final Cash Collateral Order

    Executory Contracts

    The Impact of Rejection on Trademark Licensees’ Rights in Bankruptcy: the Latest Decision on an Issue that Has Courts Divided

    Plan Confirmation

    Is Chapter 11 A Painless Solution For Guarantors?

    Zero Times Something is Still Zero: Adapting Till to Unsecured Creditors

    Cross-Border

    COMI and get it: international approaches to cross-border insolvencies

     

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    Bankruptcy and Insolvency News and Analysis – Week Ending November 13, 2015

    Friday, November 13th, 2015

    Brooklyn Eagle

    Claims

    Delaware Bankruptcy Court Addresses When, if Ever, Unsecured Creditors are Entitled to Postpetition Interest (Part 1)

    Reorganization

    Purchasing Claims and Changing Votes: Establishing ‘Cause’ Under Rule 3018(a)

    “In RE ICL Holding Co.: Roadmap For Avoiding The Absolute Priority Rule”

    Cross-Border

    Chapter 15 for All: SDNY Bankruptcy Court Holds that Indenture Governed by New York Law Constitutes “Property in the United States” Under Section 109(a)

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

    Saturday, November 7th, 2015

    Crisis and failure concept

    Trends

    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

    Claims

    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 2, 2015

    Friday, October 2nd, 2015

    Panic in the Pit

    Claims, Avoidance and Recovery

    SECOND CIRCUIT AFFIRMS VOIDING OF SECURED CREDITOR’S LIEN

    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

    Reorganizations

    Is an Old Bond Law Complicating Restructurings?

    Prepackaged Bankruptcy: Is It Right for Your Company?

    Professional Compensation

    FREQUENTLY ASKED QUESTIONS (FAQS) – PROFESSIONAL COMPENSATION – Asarco

    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

    REEXAMINING THE EQUITABLE POWERS OF THE BANKRUPTCY COURT AFTER LAW V. SIEGEL

    Sales

    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

    1907_Panic-2

    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

    Cross-Border

    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

    Trends

    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

    Sales

    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)”

    Confirmation

    IN RE SEASIDE ENGINEERING: ELEVENTH CIRCUIT HOLDS FAST ON LEGITIMACY OF NON-CONSENSUAL THIRD PARTY PLAN RELEASES

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

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

    Cross-Border

    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

    Burma_1926_Promissory_Note

    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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