(Excerpted from “Retail Bankruptcies – Protections for Landlords,” Practical Law Journal, May 2018, by Lars Fuller)

Due to increasing competition from online sellers, recent years have seen a dramatic uptick in Chapter 11 bankruptcy filings by multistate brick-and-mortar retailers – some that have dozens, or even hundreds, of storefronts. These bankruptcies create challenges for the commercial landlords that own the shopping centers, malls and other establishments that those retailers rented.

Ritchie Risk-Linked Strategies, L.L.C., an investment company headquartered in Newark, Delaware, has filed a petition for relief under Chapter 11 in the Bankruptcy Court for the District of Delaware (Case No. 18-11555). The Petition estimates Ritchie Risk’s assets and liabilities to both be between $10 – $50 million.

Ground leases are fairly common but sometimes overlooked property interests. A succinct but adequate definition of a ground lease was articulated by Herbert Thorndike Tiffany (Tiffany on Real Property § 85.50 [3d ed.]) as follows:

The Supreme Court held that a statement about a single asset can be a “statement respecting the debtor’s financial condition” for purposes of determining the application of the exception to discharge set forth in Section 523(a)(2) of the Bankruptcy Code. Lamar, Archer & Cofrin LLP v. Appling, 2018 WL 2465174 (June 4, 2018).

ABT Molecular Imaging, Inc. has filed a petition for relief under Chapter 11 in the Bankruptcy Court for the District of Delaware (Case No. 18-11398). ABT, based in Louisville, TN, designs, manufactures and distributes the world’s first and only small-footprint Biomarker Generator for Fludeoxyglucose, the imaging agent used in positron emission tomography.

New MACH Gen, LLC, along with four subsidiaries and affiliates, has filed a petition for relief under Chapter 11 in the Bankruptcy Court for the District of Delaware (Lead Case No. 18-11368). MACH Gen, headquartered in The Woodlands, Texas, owns and operates three natural gas-fired electricity generating facilities across the United States.

Sancilio Pharmaceuticals Company, Inc., along with two subsidiaries and affiliates, has filed a petition for relief under Chapter 11 in the Bankruptcy Court for the District of Delaware (Lead Case No. 18-11333).

The Supreme Court’s recent decision in Merit Mgmt. Group, LP v. FTI Consulting, Inc., 138 S.Ct. 883 (2018), held that transfers made by and to entities that are not “financial institutions” or other covered entities fall outside of the scope of the § 546(e) safe harbor even if they are made through financial institutions or other covered entities. The Supreme Court’s decision resolves a circuit split over how the § 546(e) safe harbor applies to transactions involving conduit entities and could impact future disputes involving safe harbors under the Bankruptcy Code.

The Supreme Court’s recent decision in Merit Management Group, LP v. FTI Consulting, Inc., 138 S.Ct. 883 (2018), held that transfers made by or to entities that are not “financial institutions” or other covered entities fall outside the scope of 11 U.S.C. § 546(e)’s “safe harbor” from a trustee’s avoidance powers under the Bankruptcy Code, even if those transfers are made through financial institutions or other covered entities.

Color Spot Holdings, Inc., along with three subsidiaries and affiliates, has filed a petition for relief under Chapter 11 in the Bankruptcy Court for the District of Delaware (Lead Case No. 18-11272). Headquartered in Temecula, CA, Color Spot is one of the largest growers and distributors of live plants in the western and southwestern United States.