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    Third-Party Releases in Mahwah Bergen’s Chapter 11 Plan Held to Be Unenforceable
    2022-05-26

    In a recent decision, Judge David Novak of the US District Court for the Eastern District of Virginia vacated the Chapter 11 plan confirmation order entered by the bankruptcy court in the Mahwah Bergen Retail Group (formerly known as Ascena Retail Group) case, holding that the plan’s non-consensual third-party releases were unenforceable.1 The ruling arrived shortly after an

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Mayer Brown, Bankruptcy, Coronavirus, Supreme Court of the United States
    Authors:
    Tyler R. Ferguson , Aaron Gavant , Sean T. Scott , Samuel R. Rabuck
    Location:
    USA
    Firm:
    Mayer Brown
    Bulgaria: Contractual set-off as a quasi-security in commercial and financial transactions
    2022-05-25

    The Supreme Court confirmed parties' freedom to contractually modify any of the prerequisites for set-off under Bulgarian law, thus permitting various quasi-security arrangements in commercial and financial contracts that creditors may avail themselves of.

    Prerequisites for statutory set-off in Bulgaria

    Filed under:
    Bulgaria, Insolvency & Restructuring, Litigation, Schoenherr, Supreme Court of the United States
    Authors:
    Tsvetan Krumov
    Location:
    Bulgaria
    Firm:
    Schoenherr
    First Circuit Joins the Ninth Circuit by Holding That Section 106(a) of the Bankruptcy Code Waives Tribes’ Sovereign Immunity
    2022-05-19

    Deepening a split of circuits, the First Circuit Court of Appeals held that the Bankruptcy Code waived the sovereign immunity of Native American Tribes. The May 6, 2022 opinion by Judge Sandra L.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Snell & Wilmer LLP, Bankruptcy, US Congress, Supreme Court of the United States, Ninth Circuit
    Authors:
    Heidi McNeil Staudenmaier , Jacklyn M. Branby
    Location:
    USA
    Firm:
    Snell & Wilmer LLP
    Supreme Court Agrees to Hear a Case About the Scope of the Fraud Exception to Discharge
    2022-05-18

    A discharge in bankruptcy usually discharges a debtor from the debtor’s liabilities. Section 523 of the Bankruptcy Code, however, sets forth certain exceptions to this policy, including for “any debt . . . for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by . . . false pretenses, a false representation, or actual fraud. . . .” 11 U.S.C. § 523(a)(2)(A).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White Collar Crime, Patterson Belknap Webb & Tyler LLP, US Congress, Supreme Court of the United States, Ninth Circuit
    Authors:
    Jonah Wacholder , Daniel A. Lowenthal
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP
    Courts Begin to Wrestle with the Impact of City of Chicago, Illinois v. Fulton on a Debtor’s Ability to Recover Estate Property
    2022-05-12

    Courts Begin to Wrestle with the Impact of on a Debtor’s Ability to Recover Estate Property

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, Supreme Court of the United States
    Authors:
    Robert Lemons , Jennifer Brooks Crozier
    Location:
    USA
    Firm:
    Weil Gotshal & Manges LLP
    Fourth Circuit: “Fair Ground of Doubt” Standard Applies to Contempt Allegations in Chapter 11 Cases
    2022-05-13

    In June 2019, the U.S. Supreme Court issued its unanimous decision in Taggart v. Lorenzen, through which it turned to general standards governing contempt outside of bankruptcy in holding a creditor may not be found in contempt for its failure to comply with a discharge injunction when a fair ground of doubt exists as to whether the creditor’s actions are wrongful. 139 S. Ct. 1795, 1799–1804 (2019).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, McGuireWoods LLP, Supreme Court of the United States, United States bankruptcy court, Fourth Circuit, U.S. Court of Appeals
    Authors:
    Douglas M. Foley , Stephanie Jane Bentley , Jacob Matthew Weiss
    Location:
    USA
    Firm:
    McGuireWoods LLP
    1st Circuit: Bankruptcy Code “unequivocally strips tribes” of their sovereign immunity to sue
    2022-05-12

    On May 6, the U.S. Court of Appeals for the First Circuit reversed a district court’s decision, ruling that American tribes are not exempt from federal law barring suits against debtors once they file for bankruptcy.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Orrick, Herrington & Sutcliffe LLP, US Congress, Supreme Court of the United States, First Circuit, U.S. Court of Appeals
    Location:
    USA
    Firm:
    Orrick, Herrington & Sutcliffe LLP
    Individual Debtor’s Discharge & An 1885 Precedent At U.S. Supreme Court (Bartwenwerfer v. Buckley)
    2022-04-28

    Here are a couple long-standing and foundational policies for the entire bankruptcy system:

    • Bankruptcy laws protect the honest but unfortunate debtor; and
    • Discharge exceptions are to be strictly construed against the objecting creditor and liberally construed in favor of debtor.

    So, for all my decades of practice under the Bankruptcy Code, this idea has held sway: an honest debtor is entitled to a bankruptcy discharge.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White Collar Crime, Koley Jessen PC, US Congress, Supreme Court of the United States
    Authors:
    Donald L. Swanson
    Location:
    USA
    Firm:
    Koley Jessen PC
    4th Cir. Vacates Bankruptcy Civil Contempt Order Against Creditor, Holds Taggart Standard Applies
    2022-04-25

    The U.S. Court of Appeals for the Fourth Circuit recently held that the “no fair ground of doubt” standard established by the Supreme Court of the United States in Taggart v. Lorenzen, a case involving alleged violation of a Chapter 7 discharge order, governed civil contempt proceedings for violation of a confirmed reorganization plan under Chapter 11.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Maurice Wutscher LLP, Supreme Court of the United States, Fourth Circuit, U.S. Court of Appeals
    Location:
    USA
    Firm:
    Maurice Wutscher LLP
    Justice Breyer: Fighting To The End (Badgerow v. Walters)
    2022-04-19

    Justice Stephen G. Breyer is set to retire from the U.S. Supreme Court in a few months.

    But he’s not easing into retirement.

    Instead, he’s out there swinging—fighting for his beliefs: trying to instruct / persuade current and future jurists on how the law should be applied.

    Justice Breyer’s latest punch is a lone-dissent, against an eight-Justice majority, dated March 31, 2022. In this dissent, Justice Breyer explains his doctrine of statutory interpretation.

    The Breyer Doctrine

    Justice Breyer’s doctrine goes like this:

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Koley Jessen PC, Mediation, Supreme Court of the United States
    Authors:
    Donald L. Swanson
    Location:
    USA
    Firm:
    Koley Jessen PC

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