Same dollars, different treatment: Tenth Circuit holds that distributions from a retirement plan do not fall within the Colorado state law exemption statute

Although almost all of an individual debtor’s assets become property of the estate upon a bankruptcy filing, certain exceptions exist to the rule at both the federal and state level.  In some jurisdictions, funds held for a debtor in retirement plans are exempt assets.  An open question, however, is whether payments distributed from such plans prior to the petition date are also exempt assets.  The United States Court of Appeals for the Tenth Circuit recently held in 

Filed under:
USA, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, Debtor, United States bankruptcy court, Tenth Circuit
Location:
USA
Firm:
Weil Gotshal & Manges LLP
Prepetition Claim or Postpetition Claim? The Timing of a Claim When A Debtor’s Prepetition Wrongful Actions Continue Postpetition

Executive Summary

Filed under:
USA, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, SCOTUS
Authors:
Ronit J. Berkovich
Location:
USA
Firm:
Weil Gotshal & Manges LLP
Officers of Selling Companies May Escape Fiduciary Duty Liability But May Be Required to Return Change of Control Payments if Company is Insolvent Post-Closing (Nine West Part 2)

While there has been much fuss over the recent ruling by the United States District Court for the Southern District of New York in In re Nine West LBO Securities Litigation1 due to its potential ramifications for director liability, as we explored in Part I of our series on this case here, court watchers have paid less attention to the court’s treatment of officer liability and the interes

Filed under:
USA, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, Private equity, Due diligence
Authors:
Ronit J. Berkovich , Teddy Cohan
Location:
USA
Firm:
Weil Gotshal & Manges LLP
Covenant of Good Faith and Fair Dealing Examined: La Paloma

On January 13, 2020, the United States Bankruptcy Court for the District of Delaware issued an opinion in In re La Paloma Generating Company, LLC., Case No. 16-12700 [Adv. Pro.

Filed under:
USA, Delaware, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, Debtor, United States bankruptcy court
Authors:
Ronit J. Berkovich
Location:
USA
Firm:
Weil Gotshal & Manges LLP
To Retain (Under Section 327(a) or 363(b) of the Bankruptcy Code) or Not to Retain? Retention of Liquidation Consultants in Bankruptcy Cases

In a recent opinion – In re Heritage Home Group LLC, et al., Case No. 18-11736 (KG), 2018 WL 4684802 (Bankr. D. Del. Sept. 27, 2018) – the Delaware Bankruptcy Court addressed the longstanding issue of which professional persons must be retained under section 327(a) of the Bankruptcy Code.

Filed under:
USA, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, Liquidation, US District Court for District of Delaware
Location:
USA
Firm:
Weil Gotshal & Manges LLP
Tenth Circuit B.A.P. on Novinda’s Classification: No Gerrymandering, No(n)-Creditor Interest, No Problem

Recently in Novinda,1 the Tenth Circuit Bankruptcy Appellate Panel2 upheld the separate classification of creditor claims in a chapter 11 plan on the basis that, among other things, such c

Filed under:
USA, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, Bankruptcy, Breach of contract, Tenth Circuit
Authors:
Andriana Georgallas
Location:
USA
Firm:
Weil Gotshal & Manges LLP
Fees, Fees, Fees: SDNY Bankruptcy Court Questions the Ongoing Validity of the “Blackstone Protocol” for Investment Banker Fees in Chapter 11 Cases

Background: Professionals’ Fees in Chapter 11 cases

Filed under:
USA, Banking, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, Title 11 of the US Code, United States bankruptcy court, US District Court for SDNY
Authors:
Eli Blechman
Location:
USA
Firm:
Weil Gotshal & Manges LLP
“Individually or Collectively, as the Context May Require”—Clarifying the Meaning of Defined Singular Terms; It Might Actually Matter

Fans of Star Trek: The Next Generation will well-remember that a constant threat to the crew of the Starship Enterprise was The Borg, a multi-species civilization that operated as a collective consciousness, with all individuality extinguished. When confronting any other civilization, The Borg Collective always announced: “We are the Borg. Your biological and technological distinctiveness will be added to our own. Resistance is futile.”

Filed under:
USA, Banking, Insolvency & Restructuring, Litigation, Real Estate, Weil Gotshal & Manges LLP
Authors:
Glenn D. West
Location:
USA
Firm:
Weil Gotshal & Manges LLP
District Court Denys Interlocutory Appeal of Protective Order

In the latest decision to emanate from the Madoff bankruptcy, the United States District Court for the Southern District of New York denied the appeal of a protective order that relieved Irving Picard—the court-appointed trustee—from answering discovery requests regarding his compensation arrangement with his law firm.

Filed under:
USA, New York, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, Bankruptcy, Injunction, Due process, Liquidation, United States bankruptcy court, Trustee
Location:
USA
Firm:
Weil Gotshal & Manges LLP
No American Horror Drama TV Series, but Close: Chapter 11 Case Dismissed as Resembling “Walking Dead”

While you can probably think of other contenders, if any case “resembles the walking dead,” it is the recent case of In re Commonwealth Renewable Energy, Inc. In Commonwealth, the court was faced with a motion to dismiss the debtor’s chapter 11 case pursuant to

Filed under:
USA, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, Debtor
Authors:
Andriana Georgallas
Location:
USA
Firm:
Weil Gotshal & Manges LLP