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Fifth Circuit Holds That Creditor Lacks Constitutional Standing to Appeal

The Bottom Line

USA, Insolvency & Restructuring, Litigation, Shipping & Transport, Kramer Levin Naftalis & Frankel LLP, ING Group, Fifth Circuit
Fifth Circuit Holds Executory Contract Not Listed on Bankruptcy Schedules Is Automatically Rejected Upon Expiration of 60-Day Period in Chapter 7 and Not Capable of Being Sold

The Bottom Line

The Fifth Circuit recently held in RPD Holdings, L.L.C. v. Tech Pharmacy Services (In re Provider Meds, L.L.C.), No. 17-1113 (5th Cir. Oct. 29, 2018), that a patent license that was not specifically listed on the debtors’ bankruptcy schedules was automatically deemed rejected where it was not assumed within 60 days of the cases’ conversion from Chapter 11 to Chapter 7.

What Happened?

USA, Texas, Insolvency & Restructuring, Litigation, Patents, Kramer Levin Naftalis & Frankel LLP, Bankruptcy, Fifth Circuit
Third Circuit Affirms Bankruptcy Court Retention of Jurisdiction to Resolve Dispute Despite Arbitration Provision

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The Third Circuit, in a nonprecedential opinion in FBI Wind Down, Inc. Liquidating Trust v. Heritage Home Group, LLC (In re FBI Wind Down Inc.), Case No. 17-2315 (3d Cir. July 27, 2018), recently held that the bankruptcy court retained jurisdiction over the parties’ dispute that centered on the definition of terms in a court-approved asset purchase agreement because the claims fell outside the scope of an arbitration provision in the agreement.

What Happened?

USA, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP
Delaware Bankruptcy Court Dismisses Committee’s Complaint Challenging Portion of Credit Bid

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USA, Delaware, Banking, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Fourth Amendment, US District Court for District of Delaware
Supreme Court Is Asked To Leave Its Mark On Trademark Licensee’s Rights in Bankruptcy

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USA, Insolvency & Restructuring, Litigation, Trademarks, Kramer Levin Naftalis & Frankel LLP, First Circuit
Liquidators recover unfair preference payments from retention of title ‘secured creditor’

In the recent court decision of Trenfield v HAG Import Corporation (Australia) Pty Ltd [2018] QDC 107, the liquidators recovered unfair preferences from a retention of title creditor who argued it was a secured creditor.

The issues

Australia, Insolvency & Restructuring, Litigation, Cooper Grace Ward
Trademark Licensee Retains Rights Post-Rejection

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USA, Connecticut, Insolvency & Restructuring, Litigation, Trademarks, Kramer Levin Naftalis & Frankel LLP, United States bankruptcy court
Creditor defeats liquidator’s unfair preference claim

In the recent decision of Heavy Plant Leasing [2018] NSWSC 707, a creditor successfully defended an unfair preference claim by establishing it did not have reasonable grounds to suspect the insolvency of the debtor company, who was a subcontractor in the earth moving business.

The most common way of defending a liquidator’s unfair preferences claim is to rely upon section 588FG(2) of the Corporations Act 2001(Cth); commonly called the ‘good faith defence’.

Australia, Insolvency & Restructuring, Litigation, Cooper Grace Ward, Liquidator (law)
Courts Have the Flexibility to Select Valuation Date in Cram Down Scenario; Fifth Circuit Remands to Bankruptcy Court for Re-valuation Based On Improper Deduction of Waived Fees

The Bottom Line

USA, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Fifth Circuit
Insolvency insights: Using the section 553C set-off to reduce unfair preference claims

Commonly, a creditor being sued by a liquidator to refund an alleged unfair preference is owed money by the company in liquidation.

Liquidators argue that under section 553(c)(1) of the Corporations Act 2001 (Act) a creditor is not able to set-off the outstanding indebtedness owed by the company to the creditor to reduce any liability of the creditor to refund any unfair preference. Similar arguments are made by liquidators in relation to insolvent trading claims.

A snapshot of the court decisions

Australia, Insolvency & Restructuring, Litigation, Cooper Grace Ward, Financial Conduct Authority (UK)