Section 503(b)(9) of the Bankruptcy Code, which was added to the Code pursuant to the Bankruptcy Abuse Prevention and Consumer Protection Ace of 2005 ("BAPCPA"), creates an administrative claim in favor of pre-petition suppliers of goods under certain circumstances. From the time of its enactment, courts and practitioners have sought clarity regarding the correct interpretation of key elements of this section of the Code. This article examines the concept of the date of "receipt" of goods for purposes of §503(b)(9).

The chronology in many successful Chapter 11 cases is for the debtor to confirm its plan of reorganization, and then turn its attention to recovering preferential transfers of money or property made in the 90 days (or 1 year for insiders of the debtor) before the bankruptcy filing. This article explores the duty to provide information in the plan about possible preference actions, and the level of disclosure necessary to preserve them.

Can the owners of a company retain their equity interests in a Chapter 11 reorganization plan? The answer to this question is often critical in determining whether a Chapter 11 bankruptcy proceeding is a desirable option for the company's owners. If the company is unable to pay its creditors in full, then the absolute priority rule prohibits owners from retaining their interests under a reorganization plan unless the owners contribute new value to the business that is both substantial and essential to the company's reorganization efforts.

DRI- The Voice of the Defense Bar

The ability of secured creditors to credit bid in sales conducted under bankruptcy plans of reorganization is an important right that protects them against low bids from rival purchasers. A secured creditor is typically permitted to offset, or bid, its secured allowed claim against the purchase price in a sale of collateral conducted under section 363(b) of the United States Bankruptcy Code.

Commercial real estate foreclosures present a number of significant challenges to lenders, special servicers and their counsel that residential foreclosures do not.  But residential foreclosures make up the vast majority of state courts’ foreclosure dockets, so the court system – including Judges and Master Commissioners – is often unfamiliar of the challenges associated with commercial foreclosures.  This can result in delays, unnecessary expense and the associated frustration that invariably follows when a commercial real estate asset is tied up in Court. 

The Indiana Court of Appeals recently interpreted an ambiguous subordination agreement, finding the subordinated creditor was entitled to the appointment of a receiver over the mortgaged property.  PNC Bank, National Association v. LA Develop., Inc., --- N.E.2d ---, No. 41A01-107-MF-314, 2012 WL 3156539 (Ind. Ct. App. Aug.

This article provides an analysis of whether a licensee retains the right to use trademarks following rejection of an intellectual property license.  The analysis centers on Section 365(n) of the Bankruptcy Code as well as a recent 7th Circuit opinion interpreting the applicability of that provision to trademarks.  In short, while there does not appear to be unanimity among the Circuits, there is growing authority for the proposition that the right to use trademarks does not necessarily terminate upon rejection of the license.

Perfection of security interests in intellectual property can be a trap for the unwary.  In general, secured parties are often confused about where to file in order to perfect a security interest.  This is not surprising as the perfection regime differs depending on the type of intellectual property.  As a starting point, one should determine the general rule for the main classes of intellectual property:  trademarks, patents and copyrights.

In a perfect world, a debtor's bankruptcy would involve timely reporting, good faith filings, and full disclosures.  Unfortunately, some debtors either enter the process under a cloud of suspicion or make decisions during the process that suggest the estate has been compromised by fraudulent activity.  Whether the alleged fraud is a complex bust-out scheme or a simple unreported asset transfer, the debtor may face a serious investigation.  Depending on the extent of the allegations, the investigation could be referred as a criminal matter to federal prosecutors.  As the

In Salyersville Nat’l Bank v. Bailey (In re Bailey), 664 F.3d 1026 (6th Cir.