Two decades ago, the Supreme Court tackled the issue of whether a third party had submitted itself to jurisdiction of the bankruptcy court. In Granfinanciera, S.A. v. Nordberg,1 the Supreme Court ruled that a party who has not filed a claim against a bankrupt's estate is not subject to the jurisdiction of the bankruptcy courts. A year later, in Langenkamp v.

The United States Bankruptcy Court for the District of Delaware recently denied the appointment of an examiner in U.S. Bank National Association v. Wilmington Trust Co. (In re Spansion, Inc.),1 despite the requirement in section 1104(c) of the Bankruptcy Code that the Court "shall" appoint an examiner in certain circumstances. In making this decision, Chief Bankruptcy Judge Kevin J.

In a recent decision in the chapter 11 case of WestPoint Stevens, Inc.,1 the United States Court of Appeals for the Second Circuit interpreted section 363(m) of the Bankruptcy Code to render an appeal of sale under section 363 of the Bankruptcy Code statutorily moot. The Second Circuit held that because the Bankruptcy Court had not stayed the order authorizing the sale, a stay of only one aspect of the sale rendered moot of the sale in its entirety.

In Marathon Petroleum Co. v. Cohen (In re Delco Oil Co.),1 the Court of Appeals for the Eleventh Circuit recently held that a trustee could avoid a debtor's post-petition transfers of funds that were cash collateral, notwithstanding that the payments had been made in good faith and in the ordinary course of business.

Introduction

The recent decision in the case of In re Erickson Retirement Communities, LLC, 425 B.R. 309 (Bankr. N.D. Tex. 2010) provides ammunition for those opposing the appointment of an examiner in a debtor’s Chapter 11 case and a cautionary tale for lenders entering into subordination agreements.

The Court of Appeals for the Fifth Circuit recently held that Chapter 15 of the Bankruptcy Code does not prohibit a foreign representative from bringing an avoidance action so long as the claim for relief is based on the substantive laws of the jurisdiction where the foreign proceeding is located. The Fifth Circuit’s decision is consistent with the dual policy considerations of comity and predictability. Fogerty v. Petroquest Res., Inc. (In re Condor Ins. Ltd.), 601 F.3d 319 (5th Cir. 2010).

Background

IN RE: AIRADIGM COMMUNICATIONS, INC. (August 4, 2010)

Two items of interest in the on-going saga of intellectual property enforcement against bankrupt Collezione Europa and its principals, Paul and Leonard Frankel.

A district court rejected the prudent investor rate theory and applied the Pension Benefit Guaranty Corporation (PBGC) discount rate to determine the amount of a PBGC termination liability claim. Wolverine, Procter & Schwartz, LLC v. Lynn F. Riley, 2010 WL 1236298 (D. Mass. 2010). This case demonstrates a recent trend among courts. In the 1990s and 2000s, several courts found that an unfunded benefit liability claim may be recalculated in bankruptcy using a "prudent investor rate" to determine the present value of plan liabilities.