Most bankruptcy lawyers are familiar with section 1111(b) and its attempt to rectify a perceived unfairness resulting from the ruling in In re Pine Gate Assocs., Ltd., Case No. B75-4345A, 1976 U.S. Dist. LEXIS 17366 (N.D. Ga. Oct. 14, 1976). In Pinegate, the creditor’s collateral had depreciated as the result of a cyclical market fluctuation.

Filing an involuntary bankruptcy petition is an alternative not often considered by creditors. However, faced with the possibility of having to write-off a claim, a creditor may choose to file an involuntary bankruptcy petition in order to put the debtor under the control of the Bankruptcy Code and the bankruptcy court. Such a move comes with risk, and a recent Eleventh Circuit Court of Appeals decision may expand that risk.

Suppliers of good and services (“trade creditors”) generally have no duty to determine whether their customers are operating an illegal enterprise. However a recent Fifth Circuit opinion presents an unprecedented “claw-back” risk facing trade creditors who unknowingly provide goods and services to a “Ponzi-scheme” enterprise.

The Janvey Opinion

Since the Supreme Court’s decision in Stern v.

Determining whether a contract is executory and, thereby, subject to assumption or rejection under Section 365(a) of the Bankruptcy Code, can be a difficult and fact intensive inquiry. The Eighth Circuit Court of Appeals recently held, in an en banc decision, that continuing obligations under a trademark licensing agreement were insufficient to render the agreement executory.

After more than two years of study on what needs fixing, the ABI Reform Commission proposed hundreds of discrete recommendations on refurbishing the Bankruptcy Code. The 396 page report addresses a wide variety of topics, from modifying the rights of secured lenders in large corporate workouts to creating a viable restructuring path for small businesses.

In a split decision issued late last week, the Sixth Circuit overturned a Michigan district court’s disposition of a tort suit from North Carolina arising out of allegedly faulty breast implants. In noting that “a venue transfer is not alchemy,” the court also construed complex choice-of-law issues in light of the Bankruptcy Code.

What began as a garden variety bankruptcy claims objection has ended with a sharply-worded, sixty-page opinion, in which the Sixth Circuit’s Bankruptcy Appellate Panel ( “BAP”) affirmed a bankruptcy court’s $200,000 sanctions order entered against the creditor’s attorney.

Bankruptcy Judge Chris Klein recently issued his formal confirmation opinion in Stockton’s Chapter 9 bankruptcy case. While there were no real surprises, the opinion makes for entertaining reading given the Court’s more than serious conclusion that:

Chapter 15 of the Bankruptcy Code provides a mechanism for a foreign debtor or representative in non-U.S. insolvency proceedings to protect such debtor’s U.S. assets from U.S. creditors’ collection actions or to stay any litigation commenced in the U.S. The ultimate goal in a chapter 15 proceeding is to preserve the value of the assets of the foreign debtor for the benefit of all its creditors globally.