Whether a contract is executory is an often-litigated issue in bankruptcy because of the treatment afforded to such contracts. Although the Bankruptcy Code does not define the term “executory contract,” most courts follow a variation of the definition provided by Professor Vern Countryman in a 1973 law review article.

In the novel A Frolic of His Own, by William Gaddis1, the protagonist, Oscar Crease, is run over by his own driverless car when it slips from park into neutral while Oscar is standing in front of the car trying to hot-wire it.

The Supreme Court in London today gave judgment in the Waterfall I appeal, a dispute as to the distribution of the estimated £8 billion surplus of assets in the main Lehman operating company in Europe, Lehman Brothers International (Europe) (LBIE).

LBIE entered administration on 15 September 2008 and has now paid its unsecured creditors dividends of 100p in the £. The Waterfall I Supreme Court appeal addressed some of the key issues as to who should receive the surplus, which we discuss below.

“So-called” Currency Conversion Claims

In this installment of “To Cap or Not to Cap,” which was previously featured on Weil’s Bankruptcy Blog in May of 2015 (see here), we reviewed a recent decision from the United States Court of Appeals for the Ninth Circuit. In Kupfer v.

The Bankruptcy Code’s priority scheme provides that the shareholders generally cannot receive anything on account of their investment until all secured, priority and unsecured creditors are paid in full.

Who doesn’t love a good catch-all provision? In a world of infinite possibilities, attorneys often find themselves drafting language designed to encompass a plethora of contingencies. Are such efforts sometimes overkill? Perhaps. Nevertheless, given our imperfect ability to predict the future, such provisions are often necessary and appropriate.

When Can a Subsidiary Be Liable for the Actions of Its Owners?

The latest in a line of fraudulent transfer decisions in the Madoff case has added to the case-law regarding what level of knowledge is needed to plead actual fraud in securities Ponzi scheme cases.

As we previously reported here at the Weil Bankruptcy Blog, in Burberry Limited and Burberry USA v.

Forgot to Get a Court Order Approving a Postpetition Loan?  It May Not Matter