On April 19, 2023, the United States Supreme Court issued its decision in MOAC Mall Holdings LLC v. Transform Holdco LLC, in which the Court considered whether 11 U.S.C. § 363(m) is jurisdictional. A unanimous Court held that § 363(m) is not jurisdictional, determining that the language of the statute “takes as a given the exercise of judicial power over any authorization under § 363(b) or § 363(c).” This determination is based upon the requirement that for a statutory precondition to be jurisdictional, Congress must clearly state the intent.
Puerto Rico is possibly the most financially distressed political entity in North America. The most widely available statistic is that the island has $73 billion in debt. However, if one considers unfunded pension liabilities some estimates place Puerto Rico’s debt at $167.46 billion.
Chapter 11 Debtor, Tempnology, LLC (“Tempnology”) is feeling the heat today, May 20, 2019, as the United States Supreme Court held that Mission Product Holdings, Inc., (“Mission”), a licensee of Tempnology’s “Coolcore” products, can continue to use Tempnology’s trademarks to sell and distribute its products in the United States. The Supreme Court’s decision resolved a significant circuit split, at least for trademark licensing agreements, as to whether Section 365 of the Bankruptcy Code can shield a debtor-licensor from its licensees continued use of licensed trademarks.
On the heels of last year’s Hurricane Irma, everyone is mindful about the upcoming 2018 hurricane season. Last year, Hurricane Irma hit Florida and left about 65% of the state without power. In the months following the storm, businesses in the affected areas often struggled to recover, and it was a more difficult process for some more than for others. Those companies that have relied too much on leverage and stretched their borrowing to the limit may find it difficult to get back on their feet.
Your business now faces an adversary complaint filed by the bankruptcy trustee. The complaint has several counts alleging that your business received fraudulent transfers of assets from a debtor in bankruptcy. The complaint alleges two types of fraudulent transfers. The first is actual fraud, which involves a debtor’s intent to delay, hinder, or defraud its creditors. The second is referred to as constructive fraud, which involves a debtor’s transfer of assets made in exchange for inadequate consideration.
Type of Transferee
The Eleventh Circuit recently reaffirmed the “person aggrieved” doctrine in In re Petricca, 17-10325, 2018 WL 1020046, at *1 (11th Cir. Feb. 22, 2018). The person aggrieved doctrine provides that a person may appeal from a bankruptcy court’s order only if he is a person aggrieved by the order. The doctrine limits the right to appeal a bankruptcy court order to those parties having a direct and substantial interest in the question being appealed.
Ever wonder about bankruptcy appeals; about how long a bankruptcy appeal to the Eleventh Circuit Court of Appeals will take? The answer lies in the Court’s statistical data.
When a person takes an action against an individual debtor in bankruptcy in violation of the automatic stay imposed under Section 362(a) the debtor is entitled to recover damages under Section 362(k)(1) to include costs and attorneys’ fees. An issue regarding the extent of damages to be recovered has centered on whether the fees that shall be awarded are limited to those incurred in ending the stay violation, or if they also include the fees incurred in pursuing the damage award, including defending the award on appeal.
On October 19, 2017, the Eleventh Circuit Court of Appeals stated “a bankruptcy court can enjoin any civil action if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action or in any way impacts upon the handling and administration of the bankrupt estate.” In re: Fundamental Long Term Care, No. 16-16462, 2017 WL 46826791 at *8 (11th Cir. Oct. 19, 2017) (emphasis added).
Practitioners Beware: When a client located in the state in which you practice law is served with a subpoena from a federal court located in another state, only the relevant federal court in your state (whether district or bankruptcy court) can adjudicate a motion to quash or otherwise modify the subpoena. A recent decision from a Colorado bankruptcy court, In re SBN Fog Cap II, LLC, 562 B.R. 771 (Bankr. D. Colo.