In a provocative demonstration that it scrutinizes all types of transactions, no matter their origin, the Committee on Foreign Investment in the United States (“CFIUS”) has reportedly been vetting the proposed $1 billion sale of bankrupt crypto lender Voyager Digital’s assets to Binance.US. Voyager Digital filed for Chapter 11 bankruptcy in July 2022, and, after an initial agreement to sell its assets to FTX crumbled, Binance.US provided Voyager Digital with the winning offer for its assets in December 2022. But, after the sale’s announcement on December 30, 2022, the U.S.

On July 19, 2022, the Ninth Circuit Bankruptcy Appellate Panel ruled that a creditor’s proof of claim — while meeting the standard of the Bankruptcy Code — was insufficient to enforce the debt under state law and was therefore subject to disallowance.

In 2022, there were several high-profile crypto bankruptcy filings. A big question in these cases is whether there will be any money to satisfy unsecured creditor claims. If there are funds to distribute, then the creditors’ claims will become more valuable, and the cases will become even more interesting.

Ignorance of the law is no excuse. We all learned that in law school. Still, you don’t know what you don’t know. And when it comes to bankruptcy law, too many of us just don’t know some basics, like how to protect your fee. Non-bankruptcy lawyers routinely represent debtors or their litigation opponents in non-bankruptcy disputes, such as personal injury claims. To comply with your duty to competently represent clients who are in bankruptcy or litigating against a debtor, and to protect your fee, know these fundamentals.

In a decision likely to have significant impact on certain types of bankruptcy filings going forward, this morning, the Third Circuit Court of Appeals ordered the dismissal of the Chapter 11 bankruptcy case filed by Johnson & Johnson affiliate LTL Management LLC.

In Sanofi-Aventis U.S. LLC v. Mallinckrodt PLC,¹ the United States District Court for the District of Delaware ruled that a debtor that purchased intellectual property under a prepetition asset purchase agreement could continue to retain and use the property post-confirmation while discharging its obligations to pay any future royalties otherwise owed. The decision highlights the importance of structuring transactions up-front to minimize the consequences of future bankruptcies.

Background

We can’t recall another new year beginning with such negative sentiment and low expectations for the domestic economy as 2023, with the lone exception of 2009 during the global financial crisis. A mild U.S. recession beginning later in 2023 is now the consensus expectation while inflation remains well above the Fed’s target despite seven rate hikes to date and the highest interest rates in 15 years.¹

The U.S. Department of Justice (DOJ) has released guidance to its attorneys regarding requests to discharge student loans in bankruptcy cases.

Last November we wrote about the Fifth Circuit Court of Appeals’ decision in Highland Capital Management, L.P., where the court reversed the bankruptcy court’s approval of a plan’s exculpation clause for non-debtors and limited the universe of parties covered by that provision. Relying on Bank of New York Trust Co., NA v. Official Unsecured Creditors’ Comm.