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    Recent Seventh and Ninth Circuit cases affect federal equity receiverships
    2012-02-01

    The Securities and Exchange Commission, Federal Trade Commission, and Commodities Futures Trading Commission often seek appointment of receivers in civil enforcement actions, including in actions alleging operation of Ponzi-like investment schemes. Receivers are generally tasked with taking over entities used to perpetrate schemes, conducting forensic accountings, reporting their findings to the appointing court, and recovering funds, where possible, for distribution to defrauded investors.

    Filed under:
    USA, Capital Markets, Derivatives, Insolvency & Restructuring, Litigation, Allen Matkins Leck Gamble Mallory & Natsis LLP, Bankruptcy, US Securities and Exchange Commission, Ninth Circuit, Seventh Circuit
    Authors:
    Ted G. Fates , Joshua A. del Castillo
    Location:
    USA
    Firm:
    Allen Matkins Leck Gamble Mallory & Natsis LLP
    Washington LLC member files bankruptcy - court reinstates his membership rights
    2011-10-27

    Charles McSwain, a 53% member of Hawks Prairie Casino, LLC, a Washington LLC, filed a voluntary Chapter 11 bankruptcy petition in 2007. Hawks Prairie operates a gambling casino in Thurston County, Washington.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Stoel Rives LLP, Bankruptcy, Conflict of laws, Debtor, Federal Reporter, Limited liability company, Gambling, Consent, Debtor in possession, Casino, US Code, Trustee, Ninth Circuit
    Location:
    USA
    Firm:
    Stoel Rives LLP
    Has Stern v. Marshall opened a jurisdictional dispute floodgate?
    2011-10-13

    On June 23, 2011, the Supreme Court of the United States issued the decision of Stern v. Marshall, debatably the most important case on bankruptcy court jurisdiction in the last 30 years. The 5-4 decision, written by Chief Justice Roberts, established limits on the power of bankruptcy courts to enter final judgments on certain state law created causes of action.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Chadbourne & Parke LLP, Bankruptcy, Tortious interference, Defamation, Bankruptcy discharge, Promulgation, Obergefell v. Hodges, Supreme Court of the United States, Ninth Circuit, United States bankruptcy court
    Authors:
    Douglas E. Deutsch , Robert J. Gayda , Young Yoo , Eric Daucher
    Location:
    USA
    Firm:
    Chadbourne & Parke LLP
    History matters: historical breaches may undermine assumption of executory contracts
    2011-10-13

    One of the primary fights underlying assumption of an unexpired lease or executory contract has long been over whether any debtor breaches under the agreement are “curable.” Before the 2005 amendments to the Bankruptcy Code, courts were split over whether historic nonmonetary breaches (such as a failure to maintain cash reserves or prescribed hours of operation) undermined a debtor’s ability to assume the lease or contract.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Debtor, Breach of contract, Federal Reporter, Franchise agreement, Default (finance), US Congress, Constitutional amendment, Title 11 of the US Code, Trustee, Ninth Circuit, First Circuit
    Authors:
    Lance Miller
    Location:
    USA
    Firm:
    Jones Day
    Culpability required for securities fraud exception to debt discharge in bankruptcy
    2011-09-28

    On September 19th, the Ninth Circuit considered whether the exception to Chapter 7 bankruptcy discharge for debts resulting from a violation of state or federal securities laws applies when the debtor himself is not culpable for the securities violation that caused the debt. The case involved an attorney who was required by court order to return the unearned retainer paid by a company that engaged in securities fraud. The attorney filed a petition for Chapter 7 bankruptcy before he was technically required to return the money.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, Winston & Strawn LLP, Bankruptcy, Debtor, Security (finance), Debt, Securities fraud, Bankruptcy discharge, Ninth Circuit
    Location:
    USA
    Firm:
    Winston & Strawn LLP
    Flamingo court holds joint venturer can't feather claims nest
    2011-08-10

    The Bottom Line:

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Real Estate, Kramer Levin Naftalis & Frankel LLP, Bankruptcy, Surety, Debtor, Limited liability company, Foreclosure, Joint and several liability, US Code, Trustee, Ninth Circuit, United States bankruptcy court
    Authors:
    Anita Wong
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Insured versus insured exclusion inapplicable to action by bankruptcy trustee, and bankruptcy exclusion deemed unenforceable
    2011-08-08

    An Illinois appellate court, applying Indiana and federal law, has held that neither a bankruptcy exclusion nor an insured versus insured exclusion applied to bar coverage for claims brought by a bankruptcy trustee.  Yessenow v. Exec. Risk Indem., Inc., 2011 WL 2623307 (Ill. App. Ct. June 30, 2011).

    Filed under:
    USA, Illinois, Healthcare & Life Sciences, Insolvency & Restructuring, Insurance, Litigation, Wiley Rein LLP, Bankruptcy, Debtor, Interest, Federal Reporter, Standing (law), Debtor in possession, Trustee, Ninth Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Wiley Rein LLP
    Consultant ruled a creditor not a shareholder; subordination overturned
    2007-02-19

    A business consultant who contracted to receive a percentage of a company’s shares in exchange for helping the company go public—but never actually received those shares and obtained a money judgment against the company instead—was not a holder of equity for purposes of subordination under the Bankruptcy Code, the U.S. Court of Appeals for the Ninth Circuit has determined.

    Filed under:
    USA, Company & Commercial, Insolvency & Restructuring, Litigation, Reed Smith LLP, Share (finance), Bankruptcy, Shareholder, Breach of contract, Federal Reporter, Remand (court procedure), Initial public offerings, Jury trial, US Code, Ninth Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Reed Smith LLP
    Assignments of equipment lease payment streams were loans, not sales
    2007-02-19

    The Bankruptcy Appellate Panel of the Ninth Circuit has ruled that assignments of equipment lease payment streams were not automatically perfected. Because the debtor failed to perfect the assignees’ interests in the payment streams, the bankruptcy trustee could bring an action to avoid those interests.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Reed Smith LLP, Bond (finance), Debtor, Interest, Personal property, Uniform Commercial Code (USA), Trustee, Ninth Circuit, United States bankruptcy court, Bankruptcy Appellate Panel
    Location:
    USA
    Firm:
    Reed Smith LLP
    Supreme Court allows unsecured lender to recover contractual legal fees in bankruptcy case
    2007-03-21

    The Supreme Court unanimously held on March 20, 2007, that an unsecured lender could recover contractbased legal fees “incurred in [post-bankruptcy] litigation” on “issues of bankruptcy law.” Travelers Casualty & Surety Co. of America v. Pacific Gas & Elec. Co., __ U.S. __ (March 20, 2007). Op., at 1, 3. In doing so, the court vacated a summary ruling by the Ninth Circuit last year. 167 Fed. Appx. 593 (9th Cir. 2006) (held, “attorney fees… not recoverable in bankruptcy for litigating issues ‘peculiar to federal bankruptcy law.’“), citing In re Fobian, 951 F.2d 1149, 1153 (9th Cir.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Bankruptcy, Surety, Debtor, Unsecured debt, Federal Reporter, Remand (court procedure), Bad faith, Attorney's fee, Supreme Court of the United States, Second Circuit, Ninth Circuit, Fourth Circuit
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP

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