Bankruptcy & Insolvency

Articles

2017

A Primer on Preference Actions in Bankruptcy
By Patrick Byrnes – March 16, 2017
Your guide to the basics of preference actions and common defenses.

Testing Management Valuation When Something Doesn’t Smell Right
By Curtis S. Miller and Jose F. Bibiloni – March 16, 2017
Did the appointment of equity committees result in better returns in Horsehead Holding Corp. and Energy XXI?

Third Circuit Departs from Momentive and Enforces Make-Whole Provisions in EFH
By Curtis S. Miller and Matthew O. Talmo – March 16, 2017
It remains to be seen whether this decision will affect the Second Circuit’s decision.

Delaware Bankruptcy Court: Unredeemed Gift Cards Are Not Entitled to Priority Status
By Zachary I. Shapiro – March 16, 2017
At least two of the six bankruptcy judges hold that unredeemed gift cards are not entitled to priority status under 507(a)(7).

2016

Mediation Plays an Important Role in Resolving Bankruptcy Cases
By Daniel J. DeFranceschi – June 1, 2016
Chapter 11 works best and most efficiently when the restructuring is consensual.

The Third Circuit Affirms a Debtor's Ability to Reject an Expired CBA
By Zachary I. Shapiro – June 1, 2016
The court held that section 1113 applies to both expired and unexpired collective bargaining agreements.

The Southern District of New York Authorizes the Rejection of Gas Gathering Agreements
By Zachary I. Shapiro – June 1, 2016
Dismissal of a complaint without prejudice for failure to plead sufficient facts is not a final, appealable order.

Delaware Bankruptcy Court Denies "Fees on Fees" Provision in Retention Application
By Joseph C. Barsalona II – June 1, 2016
This decision deals a harsh blow to estate professionals.

2015

ABI Commission Issues Recommendations on Preference Laws
By Daniel J. DeFranceschi – October 6, 2015
Read about Chapter 11 reforms in the new report.

Is Structured Dismissal a Dismissal of Structure?
By Edward Clarkson III – October 6, 2015
Jevic is the first circuit court decision to affirmatively rule on the issue of whether the Bankruptcy Code allows for structured dismissals.

What Level of Specificity Is Needed to Preserve Post-Confirmation Claims?
By Siddharth P. Sisodia – October 6, 2015
A challenging endeavor made easy.

Delaware Bankruptcy Court Adopts the "Time" Approach to Lease Rejection Damages
By Curtis S. Miller and William M. Alleman Jr. – October 6, 2015
Judge Kevin Carey provides significant guidance to debtors and landlords calculating rejection damages claims.

When Does a Chapter 11 Plan Extinguish a Secured Creditor's Lien?
By Zachary I. Shapiro – October 6, 2015
The Second Circuit outlines the circumstances.

Equitable Mootness Is Alive and Well
By Daniel J. DeFranceschi – October 6, 2015
A recent Third Circuit decision makes it clear.

Can Warrants Be Deemed "Original Issue Discount" and Disallowed as Unmatured Interest?
By Stuart Komrower and David W. Giattino – June 11, 2015
Each case must be decided on its unique facts.

No One Gets a Free House—Unless the Statute of Limitations Runs
By Joseph J. DiPasquale and Robert S. Roglieri – June 11, 2015
Both debtors and secured creditors must be aware of the notable consequences of accelerating mortgages.

Determining Insurance Premium Finance Company's Potential Preference Exposure
By Howard A. Cohen – June 10, 2015
Timing is everything.

State Law Permitting, Classic Retainers Are Not Property of the Estate
By Zachary I. Shapiro – June 10, 2015
A retainer remains property of the law firm, not the client.

What Should You Consider When Purchasing Distressed Assets?
By Christopher A. Ward – March 5, 2015
Be aware of the pitfalls and benefits before venturing down this path.

New Limits to Bankruptcy Standing in the Seventh Circuit
By Devoy Dubuque and David R. Doyle – March 5, 2015
Learn why the court limited the scope in the context of a debtor's attempt to settle with its primary insurer.

Parsing the Overhaul of the Bankruptcy Appeals Rules
By Gregory W. Werkheiser – March 5, 2015
Learn why these revisions will aid the smooth flow of traffic through various courts.

Is Silence Truly Golden?
By John R. Burns – March 5, 2015
The consequences of asserting the Fifth Amendment in bankruptcy proceedings.

An Interview with the Honorable Hannah L. Blumenstiel
By Jay Geller – March 5, 2015
The committee is pleased to present an interview with a bankruptcy judge for the Northern District of California.

The House Always Wins: Section 1113 and Debtors with Crippling Labor Expenses
By Jay Geller – March 5, 2015
This portion of the Bankruptcy Code may serve as a Trump card for debtors facing expired collective bargaining agreements.

2014

The House Always Wins: Section 1113 and Debtors with Crippling Labor Expenses
By Curtis S. Miller and Matthew R. Koch – December 17, 2014
This portion of the Bankruptcy Code may serve as a Trump card for debtors facing expired collective bargaining agreements.

"Bankruptcy Remote" Does Not Mean "Bankruptcy Proof"
By Jeremy R. Fischer – December 3, 2014
Entities are generally made bankruptcy remote for the benefit of one or more key classes of creditors or equity holders.

Are Estate Professionals Entitled to Be Compensated for Defending Their Own Fees?
By Catherine Steege – December 3, 2014
Unlike most non-bankruptcy representations, simply pleasing the client is not enough to get the bill paid.

Fourth Circuit's Gold Standard and Interpretations of Good Faith
By Robert C. Maddox – December 3, 2014
The court adds a little subjectivity to Section 548(c) rulings from other circuits.

Testimony by Proffer in Bankruptcy Court
By Joseph C. Barsalona II – December 3, 2014
Learn the allowances, advantages, and pitfalls of this trial technique.

"Neo Badges": The Evolution of the Badges of Fraud
By Ronald Peterson and Landon Raiford – September 17, 2014
History shows that the badges evolve to keep up with the creative spirit of those who commit fraud.

Young Lawyer Focus: Determining Insolvency and the Balance Sheet Test
By Jeffrey L. Baliban – September 17, 2014
Careful consideration must be given to many factors before interpreting this test's results.

An Interview with the Honorable Bruce A. Harwood
By Jay Geller – September 17, 2014
The committee is pleased to present an interview with the chief U.S. bankruptcy judge for the District of New Hampshire.

The High Court Closes the Statutory Gap in Bankruptcy Procedure
By Catherine Steege and Melissa Root – September 17, 2014
The Court's ruling reaches the result that lower courts consistently arrived at prior to Stern v. Marshall.

Common Issues When a Party to Litigation Faces Financial Distress
By Mark A. Platt and Ryan E. Manns – September 4, 2014
Familiarity with certain issues that arise in bankruptcy litigation can help you better protect your client’s economic interest.

When a Settlement No Longer Is Consensual
By Marcos A. Ramos and Cory D. Kandestin – August 1, 2014
Are no agreements binding until approved by the court?

Rule 37(e) and the Failure to Preserve Sanctions in E-Discovery
By Camisha L. Simmons – July 2, 2014
This Federal Rule of Civil Procedure undergoes possible revisions.

Can a Pre-Petition State Tax Lien Foreclosure Be Avoided as a Fraudulent Transfer?
By Lynn J. Hinson – June 12, 2014
A look at Section 548 of the Bankruptcy Code.

Mediation as an Effective Alternative in Bankruptcy Litigation, Part III
By Leif M. Clark – May 29, 2014
Know the various pitfalls and pratfalls experienced by mediating attorneys.

Treatment of a Discharged Promissory Note with a Residential Mortgage
By Charles Parker II – May 29, 2014
The broad concern is the lack of case law or Bankruptcy Code section that specifically addresses this issue.

Young Lawyer Focus: Enterprise Value as Distinct from Equity Value
By Jeffrey L. Baliban – May 29, 2014
In reviewing business valuation reports, it is critical to ask, "What are we valuing?"

Preserving Causes of Action Post-Confirmation
By Cory D. Kandestin – April 1, 2014
Four circuits have addressed this question, each with different outcomes.

Voluntary Bankruptcy Adjudication: Why Consent Matters
By Catherine Steege and Melissa Root – March 27, 2014
Four circuits have addressed this question, each with different outcomes.

When Negotiations Are "Impracticable": Detroit and Chapter 9 Eligibility
By Brendan M. Gage – March 27, 2014
The troubled Motor City satisfies a key condition to bankruptcy filing.

Applying the Doctrine of Exclusive Appellate Jurisdiction to Bankruptcy Appeals
By Gregory W. Werkheiser and Christopher M. Hayes – March 27, 2014
Identify what can hurt clients when you prosecute an appeal.

Compelling Arbitration in an Adversary Proceeding
By Gregory W. Werkheiser and Christopher M. Hayes – March 27, 2014
More and more bankruptcy and district courts have compelled arbitration against debtors or their trustees.

2013

Mediation as an Effective Alternative in Bankruptcy Litigation, Part I
By Leif M. Clark – December 26, 2013
Mediation? I don't need no stinkin' mediation!

Young Lawyer Focus: Using Financial Ratios
By Jeffrey L. Baliban – December 26, 2013
Create models that predict financial failure.

Mediation as an Effective Alternative in Bankruptcy Litigation, Part II
By Leif M. Clark – December 26, 2013
How to use the method effectively in bankruptcy contexts.

Electricity Does Not Qualify as a Good for Section 503(b)(9) Treatment
By Peter J. Roberts – December 26, 2013
In re NE Opco, Inc., or Why You Should Have Paid More Attention in Physics Class.

An Interview with the Honorable Gregory R. Schaaf
By Jay Geller – December 26, 2013
The committee is pleased to present an interview with a bankruptcy judge for the Eastern District of Kentucky.

Young Lawyer Focus: Financial Statement Analysis in Determining Solvency
By Jeffrey L. Baliban – October 15, 2013
Using information from your statements to note potential risks.

Railroads in Bankruptcy: What Happens after a Financial Derailment
By Thomas Rice – October 15, 2013
New short line railroads face costs that could lead to future bankruptcy cases.

Hearsay and Federal Rule of Evidence 801
By Hon. Pam Pepper – October 15, 2013
The definition of hearsay is fairly straightforward, but there are so many exceptions that they start to subsume the definition.

Seventh Circuit Rules that Transfer of Equity Did Not Violate Absolute Priority Rule
By Michael A. Fagone and Craig T. Nale – June 24, 2013
The court's opinion should be carefully considered by any parties involved in a contested confirmation involving cramdown of unsecured claims.

How a Damages Expert Can Stumble over the Balance Sheet
By Alexander "Sasha" Aganin – June 18, 2013
Keep track of both sides of the balance sheet when calculating damages.

The Latest Supreme Court Decision on Bankruptcy: Bullock v. BankChampaign
By Aaron M. Kaufman – June 18, 2013
The High Court finally defined the term "defalcation."

Young Lawyer Focus: Cap Rates Can Be Calculated—And Challenged
By Jeffrey L. Baliban – June 18, 2013
Understanding cap rates is crucial in supporting or challenging valuation opinions.

A Survey of Cases Interpreting Stern v. Marshall, Part VI
By Omar J. Alaniz – June 18, 2013
The sixth in a series analyzing trends in interpreting the Stern decision.

"Best Practices Report on Electronic Discovery (ESI) Issues in Bankruptcy Cases" Is Now Available
A helpful resource guide for attorneys and judges in considering and addressing electronic discovery and ESI issues in bankruptcy cases.

A Survey of Cases Interpreting the Stern Decision, Part V
By Omar J. Alaniz – March 13, 2013
This fifth part in the series is a synthesis and discussion of the cases that have meaningfully discussed Stern from October 16, 2012, through January 15, 2013.

Issues Surrounding the Use of Lay Witnesses
By Hon. Pam Pepper – March 13, 2013
A judge gives her expert views on nonexpert witnesses.

An Interview with Judge Donald R. Cassling
By Hon. Pam Pepper – March 13, 2013
The committee is pleased to provide an interview with a United States Bankruptcy Judge for the Northern District of Illinois.

Appeals Court Addresses Retention of Postconfirmation Standing
By Thomas Rice – March 13, 2013
A judge gives her expert views on nonexpert witnesses.

2012

Particular Evidence Problems with Appraisals, Part III: Expert Witnesses
By Hon. Pam Pepper – December 10, 2012
While bankruptcy litigants need to call experts to testify about scientific issues, more frequently they call nonscientific experts.

Particular Evidence Problems with Appraisals, Part III: Expert Witnesses
By Hon. Pam Pepper – December 10, 2012
While bankruptcy litigants need to call experts to testify about scientific issues, more frequently they call nonscientific experts.

Cram-Down Interest Rates: What Till Tells Us (or Not)
By Jeffrey L. Baliban – December 10, 2012
A used pickup truck may provide guidance for a multi-billion-dollar commercial mortgage portfolio.

Collateral Attacks on Sale Orders, Due Diligence, and the Barton Doctrine
By James E. Bailey III and Paul S. Murphy – December 10, 2012
What happens when a trustee sells an asset that the estate did not own?

A Survey of Cases Interpreting Stern v. Marshall, Part III
By Omar J. Alaniz – August 21, 2012
The number of sources citing Stern exceeded the 1,000 mark in early July 2012.

A Primer on Discount Rates Continued
By Jeffrey L. Baliban – August 21, 2012
Bankruptcy professionals encounter complex issues when dealing with fraudulent conveyance claims, and other issues related to analyzing solvency.

Particular Evidence Problems with Appraisals, Part II
By Hon. Pam Pepper – August 21, 2012
Defeating a hearsay objection to the admission of an appraisal report is only one hurdle that parties have to jump if they want to use an appraisal report to prove value.

A Survey of Cases Interpreting the Stern Decision, Part IV
By Omar J. Alaniz – December 10, 2012
This fourth part in the series is a synthesis and discussion of the cases that have meaningfully discussed Stern from July 16, 2012, through October 15, 2012.

Interview with Hon. James P. Smith
By Robert Fishman and Jay Geller – August 21, 2012
The committee is pleased to provide an interview with Hon. James P. Smith, U.S. Bankruptcy Judge for the Middle District of Georgia.

A Primer on Discount Rates
By Hon. Pam Pepper – May 30, 2012
This is the second in a four-part series addressing the issues bankruptcy professionals encounter when dealing with fraudulent conveyance claims and other issues related to analyzing solvency.

The Role of a Receiver in a Bankruptcy Case
By Thomas Rice – May 30, 2012
While the filing of a bankruptcy case typically means that a receiver is required to turn over the assets to representatives of the estate, but it is not a foregone conclusion that the receiver must step aside.

For Both New and Experienced Lawyers—Particular Evidence Problems with Appraisals
By Hon. Pam Pepper – May 30, 2012
One of the most powerful tools in a lawyer's valuation arsenal is the report of a professional “valuer.”

A Survey of Cases Interpreting the Stern Decision, Part II
This article is the second in a multipart series that provides an overview of trends in interpreting Stern v. Marshall.

Appeals Court Addresses Retention of Postconfirmation Standing
By Thomas Rice – March 13, 2013
A judge gives her expert views on nonexpert witnesses.

Measuring Reasonably Equivalent Value
By Jeffrey L. Baliban – February 15, 2012
This article is the first in a four-part series addressing the complex issues bankruptcy professionals encounter when dealing with fraudulent conveyance claims and other issues related to analyzing solvency.

Measuring Reasonably Equivalent Value
By Jeffrey L. Baliban – February 15, 2012
This article is the first in a four-part series addressing the complex issues bankruptcy professionals encounter when dealing with fraudulent conveyance claims and other issues related to analyzing solvency.

A Survey of Cases Interpreting the Stern Decision
By Omar J. Alaniz – February 15, 2012
This article is the first in a multipart series that will provide an overview of trends in how courts are interpreting Stern v. Marshall.

Assessing Costs in Third-Party Discovery Under F.R.C.P. 45(c)
By Meghan E. Bishop – February 15, 2012
Common criticisms of litigation, namely time and expense, can be primarily attributed to discovery.

Interview with the Honorable Tracey N. Wise
By Robert Fishman and Jay Geller – February 15, 2012
The committee is pleased to provide below an interview with the Honorable Tracey N. Wise, Chief United States Bankruptcy Judge for the Eastern District of Kentucky.

2011

Reliance on Client's Automated Information System May Support Rule 9011 Liability
By Marcos A. Ramos – November 14, 2011
Counsel's reliance on a client lender's information systems can lead to the imposition of sanctions against not only the client, but also against counsel.

Interview with the Honorable Shelley C. Chapman
By Robert Fishman and Jay Geller – October 17, 2011
An insightful interview with the Honorable Shelley C. Chapman, U. S. Bankruptcy Judge for the Southern District of New York.

Contingent Claims and Solvency Analysis Part IV
By S. Todd Burchett and L. Rand Gambrell – October 17, 2011
This is the fourth article in a four-part series on quandaries for bankruptcy trustees as they evaluate contingent liabilities against, and the solvency of, companies in bankruptcy.

Can You Sail into the Safe Harbor?
By Howard Weg and Kathryn Russo – October 17, 2011
Second Circuit holds that a chapter 11 debtor's pre-petition payments for early redemption of its publicly traded commercial paper were “settlement payments” under section 546(e) of the Bankruptcy Code.

Lessons Learned on Preference Pleading Requirements to Satisfy Twombly and Iqbal
By James P. Menton Jr. – October 17, 2011
Miller v. Mitsubishi proves the importance of providing factual allegations in the complaint to support pleading preference claims.

A Test for Determining Whether a Claim Is Derivative or Direct
By Deborah D. Williamson – July 14, 2011
Just as bankruptcy follows bank failure, often litigation follows in the form of derivative or direct claims against officers and directors of the failed bank and its holding company.

Litigation Claims in Consumer Bankruptcy Cases
By Deborah B. Langehennig – July 14, 2011
Courts have split on Chapter 13 issues with decisions turning on plan-vesting provisions, the nature of the cause of action, and the debtor's chosen exemption scheme.

Interview with the Honorable H. Christopher Mott
By Robert Fishman and Jay Geller – July 14, 2011
The committee is pleased to provide an interesting and insightful interview with the Honorable H. Christopher Mott, U.S. Bankruptcy Judge for the Western District of Texas.

Contingent Claims and Solvency Analysis Part III
By S. Todd Burchett, Donald C. Wengler, and L. Rand Gambrell – July 14, 2011
The valuation of contingent liabilities remains an evolving area for valuation professionals, with best practices continuously being challenged and revised.

Interpreting Creditor Silence under Section 1129 of the Bankruptcy Code
By Kevin J. Mitchell – July 14, 2011
The Bankruptcy Code provides no clear guidance on the question of whether creditor silence should be deemed an acceptance or a rejection, and case law has not provided consistent guidance.

A Bankruptcy Submission Hold
By Jay S. Geller and Jeremy R. Fischer – April 13, 2011
The sharp increase in the number of bankruptcy cases has been coupled with a similar mushrooming of bankruptcy-related litigation.

What Does a Chapter 11 or 7 Trustee, Examiner, or Receiver Need?
By Bettina M. Whyte – April 13, 2011
It is always helpful to understand what is going on in the mind of the person who is going to hire you as counsel.

Contingent Claims and Solvency Analysis Series Part II
By S. Todd Burchett, Donald C. Wengler, and L. Rand Gambrell – April 13, 2011
Current accounting requirements for contingencies present many challenges to companies and practitioners.

Contingent Claims & Solvency Analysis Part I: A Known Defective Product; Claims Unknown, but Probable
By S. Todd Burchett, Donald C. Wengler, and L. Rand Gambrell – February 28, 2011
It is not uncommon for a company with a defective product, significant litigation, or both to find itself in bankruptcy.

Retaining Post-Confirmation Subject-Matter Jurisdiction in the Fifth Circuit, Part 2
By Thomas Rice – February 11, 2011
Second part of the two-part series on ruling on a debtor’s attempt to retain the right to pursue claims and causes of action after confirmation.

Retaining Post-Confirmation Subject-Matter Jurisdiction in the Fifth Circuit, Part 1
By Thomas Rice – February 11, 2011
Ruling on a debtor’s attempt to retain the right to pursue claims and causes of action after confirmation.

ASARCO Decisions Elucidate Requirements for "Substantial Contribution" Claims
By Christopher Castillo and Brooks Hamilton – February 10, 2011
Two recent decisions denied substantial contribution requests by two different groups of creditors.