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    Third Circuit affirms Delaware Bankruptcy Court stub rent decision
    2010-10-22

    Bankruptcy Code § 365(d)(3) requires the trustee or the debtor in possession to "timely perform all the obligations of the debtor . . .arising from and after the order for relief under any unexpired lease of nonresidential real property, until such lease is assumed or rejected, notwithstanding section 503(b)(1)." In 2001 the Third Circuit construed this section to require the debtor to perform the lease in accordance with its terms. CenterPoint Properties v. Montgomery Ward Holding Corp. (In re Montgomery Ward Holding Corp.), 268 F.3d 205 (3d Cir. 2001).

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Real Estate, Fox Rothschild LLP, Retail, Debtor, Landlord, Federal Reporter, Debtor in possession, Title 11 of the US Code, United States bankruptcy court, Third Circuit, First Circuit, Circuit court, Trustee
    Location:
    USA
    Firm:
    Fox Rothschild LLP
    The common interest privilege
    2010-10-12

    A discovery dispute gave the bankruptcy court an opportunity to rule on the common interest privilege which, the court said, has completely replaced the joint defense privilege for information sharing among clients with different attorneys, citing In re Teleglobe Communications Corp., 493 F.3d 345, 364 n. 20 (3d Cir. 2007). Leslie Controls, Inc., Case No. 10-12199 (Bankr. D. Del. 9/21/10)(Sontchi, B.J.).

    Filed under:
    USA, Insolvency & Restructuring, Insurance, Litigation, Fox Rothschild LLP, Share (finance), Bankruptcy, Debtor, Waiver, Interest, Federal Reporter, Work-product doctrine, Discovery, Futures contract, United States bankruptcy court, Third Circuit
    Location:
    USA
    Firm:
    Fox Rothschild LLP
    Decision in Everything But Water, LLC requires preference claimants to identify transferees specifically in granting motion to dismiss
    2011-08-19

    Summary

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Fox Rothschild LLP, Bankruptcy, Debtor, Fraud, Federal Reporter, Involuntary dismissal, Bear Stearns, United States bankruptcy court, Third Circuit, Trustee
    Authors:
    L. John Bird
    Location:
    USA
    Firm:
    Fox Rothschild LLP
    Frenville overruled
    2010-09-23

    In 1984 a Third Circuit panel decided that the automatic stay did not apply to a right to payment which arose under applicable state law after a bankruptcy petition was filed. Avellino & Bienes v. M. Frenville Co., 744 F.2d 332 (3d Cir. 1984). The Third Circuit tradition is that the holding of a panel in a precedential opinion is binding on subsequent panels. Until this year Frenville remained good Third Circuit law notwithstanding universal rejection by other circuits.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Fox Rothschild LLP, Debtor, Federal Reporter, Remand (court procedure), Causation (law), Bankruptcy discharge, Title 11 of the US Code, US Constitution, General Motors, United States bankruptcy court, Third Circuit, US District Court for SDNY
    Authors:
    L. Jason Cornell
    Location:
    USA
    Firm:
    Fox Rothschild LLP
    Semcrude decision delineates the process for analyzing motions for continuance vs. motions for summary judgment
    2011-08-14

    Summary

    Filed under:
    USA, Energy & Natural Resources, Insolvency & Restructuring, Litigation, Fox Rothschild LLP, Bankruptcy, Natural gas, Federal Reporter, Discovery, Limited partnership, Federal Rules of Civil Procedure (USA), United States bankruptcy court, Third Circuit
    Authors:
    L. John Bird
    Location:
    USA
    Firm:
    Fox Rothschild LLP
    A closer look at the equitable power of the Bankruptcy Court
    2010-08-24

    Introduction

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Fox Rothschild LLP, Bankruptcy, Debtor, Federal Reporter, Limited liability company, Subsidiary, Title 11 of the US Code, Lehman Brothers, Eighth Circuit, United States bankruptcy court, US District Court for District of Delaware
    Authors:
    L. Jason Cornell
    Location:
    USA
    Firm:
    Fox Rothschild LLP
    Fruehauf opinion illustrates that despite a preference to allow amendment of pleadings, courts won't always allow amendment
    2011-08-10

    Summary

    In a 23 page decision signed July 15, 2011, Judge Walsh of the Delaware Bankruptcy Court denied a motion to allow a plaintiff to file an amended complaint, holding that the amended complaint was too deficient to survive a motion to dismiss and therefore would not be allowed. Judge Walsh’s opinion is available here (the “Opinion”).

    Background

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Fox Rothschild LLP, Bankruptcy, Fraud, Statute of limitations, Federal Reporter, Liquidation, Constitutional amendment, Federal Rules of Civil Procedure (USA), United States bankruptcy court, Third Circuit, Trustee
    Authors:
    L. John Bird
    Location:
    USA
    Firm:
    Fox Rothschild LLP
    Decision in Eclipse Aviation addresses subject matter jurisdiction of the bankruptcy court
    2010-08-18

    Introduction

    Filed under:
    USA, Delaware, Aviation, Insolvency & Restructuring, Litigation, Fox Rothschild LLP, Bankruptcy, Debtor, Interest, Federal Reporter, Liquidation, Involuntary dismissal, Conveyancing, Subject-matter jurisdiction, Prejudice, Exclusive jurisdiction, United States bankruptcy court, Third Circuit
    Authors:
    L. Jason Cornell
    Location:
    USA
    Firm:
    Fox Rothschild LLP
    Seventh Circuit adopts Second Circuit’s broad safe harbor definitions
    2013-09-17

    The Seventh Circuit has explicitly adopted the Second Circuit’s broad interpretation of the terms “transfer” and “settlement payment” in the Bankruptcy Code’s safe harbor provisions. See Peterson v. Somers Dublin Ltd., No. 12-2463, --- F.3d ----, 2013 WL 4767495 (7th Cir. Sept.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Alston & Bird LLP, Federal Reporter, Enron, Second Circuit, Seventh Circuit
    Authors:
    John Spears
    Location:
    USA
    Firm:
    Alston & Bird LLP
    Bankruptcy reorganization
    2011-02-28

    The taxpayer was able to convince the court that the creditors who got the stock in the reorganization were not the prior owners. Because the events occurred in 1992, under a prior version of the continuity of proprietary interest rules, continuity of ownership was broken and a section 338(h)(10) election could be made and the basis in the assets inside the corporation stepped up to fair market value, with no tax liability because the seller was in bankruptcy with large net operating losses (NOLs).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Tax, Alston & Bird LLP, Tax exemption, Bankruptcy, Shareholder, Debtor, Interest, Federal Reporter, Debt, Liquidation, Fair market value, Subsidiary, Seventh Circuit
    Authors:
    Jasper L. (Jack) Cummings , Jr.
    Location:
    USA
    Firm:
    Alston & Bird LLP

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