Summer 2024 Editor: Melanie Willems IN THIS ISSUE “Seething on a jet plane” - conditions precedent and time of the essence in commercial contracts by Jack Spence 03 09 11 24 Diamonds aren’t forever: who is vicariously responsible when they have been stolen?

On May 16th, the DOL released interim final rules (the “Final Rules”) and an amendment to Prohibited Transaction Exemption 2006-06 (the “Amendment to PTE”), effective July 16, 2024, amending the DOL’s Abandoned Plan Program (the “APP”) to allow Chapter 7 bankruptcy trustees to use the APP to terminate, wind up, and distribute assets from a bankrupt company’s retirement plan.

The Aldrich Pump Texas Two-Step bankruptcy may have survived dismissal at the bankruptcy court level, but now the asbestos claimants have appealed to the Fourth Circuit following Judge Whitley's approval of their motion for direct appeal.1

The Fifth Circuit recently issued an opinion that increases the marketability of estate assets often viewed as untouchable. In In re S. Coast Supply Co. ("South Coast"), 91 F.4th 376 (5th Cir. 2024), the Fifth Circuit held that a bankruptcy "preference" action may be sold to a third party under section 363 of the Bankruptcy Code even if the buyer is not an estate fiduciary and does not represent the bankruptcy estate. A preference action is an "avoidance" claim arising under section 547 of the Bankruptcy Code.

Two recent court decisions may indicate more uncertainty with respect to the enforceability of “make-whole” premiums in bankruptcy. Make-whole or prepayment premiums are common within loan agreements, bond issuances and other debt instruments.

In our original article, we prefaced that Johnson & Johnson (“J&J”) would likely utilize the Texas Two Step to attempt to resolve its tort liabilities related to talc powder.¹ On October 12, 2021, J&J did just that. The company used Texas’s divisive merger statute to spinoff the talc liabilities into a new entity, LTL Management, LLC (“LTL”).

. The debtor did not notify a tort claimant of his chapter 11 filing. The claimant filed an action against the debtor after the bankruptcy filing. The debtor did not respond, and the claimant obtained a default judgment. The debtor’s case was dismissed for failure to prosecute. Later, the debtor filed a second chapter 11 case, which was converted to chapter 7. The claimant sought retroactive stay r

The debtor violated numerous state court orders in actions to recover amounts he misappropriated. The state court held him in contempt and imposed monetary sanctions and ordered him to stop managing property he did not own and to turnover proceeds from the illegal management. The debtor filed his bankruptcy petition the day before a state court hearing on sentencing the debtor to jail for contempt.

We discussed in the March 2020 edition of the Texas Bar Journal¹ the bankruptcy court ruling by Judge Craig A. Gargotta of San Antonio in In Re First River Energy LLC that oil and gas producers in Texas do not hold perfected security interests in oil and gas well proceeds, notwithstanding the Texas Legislature’s efforts to protect producers and royalty owners following the downturn in the 1980s. The Fifth Circuit recently reaffirmed Judge Gargotta’s decision.

The city impounded the debtor’s vehicle for nonpayment of traffic fines. The debtor filed a chapter 13 petition and demanded turnover of the car. Section 362(a)(3) stays any act to “exercise control over property of the estate.” Section 542(a) requires one in possession of property of the estate to deliver it to the trustee. The most natural reading of section 362(a)(3) is that it prohibits affirmative acts that alter the status quo and does not impose an affirmative obligation on a party holding property of the estate to turn it over. Section 542(a) performs that function.