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    From the Top in Brief - July/August 2016
    2016-08-08

    The U.S. Supreme Court has handed down two rulings thus far in 2016 (October 2015 Term) involving issues of bankruptcy law. In the first, Husky Int’l Elecs., Inc. v. Ritz, 194 L. Ed. 2d 655, 2016 BL 154812 (2016), the Court addressed the scope of section 523(a)(2)(A) of the Bankruptcy Code, which bars the discharge of any debt of an individual debtor for money, property, services, or credit to the extent obtained by "false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition."

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White Collar Crime, Jones Day, Bankruptcy, Debtor, Fraud, Federal Reporter, Debt, Debt relief, Constitutionality, Dissenting opinion, Bankruptcy discharge, Title 11 of the US Code, Supreme Court of the United States, Fifth Circuit, Third Circuit, Seventh Circuit, First Circuit
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Eleventh Circuit Holds Bankruptcy Rules Applicable to Matters on Which the Reference has been Withdrawn to the U.S. District Court
    2016-07-19

    When an adversary proceeding is transferred to the district court pursuant to a withdrawal of the reference, which rules—and deadlines—apply: those contained within the Federal Rules of Civil Procedure, or those contained within the Federal Rules of Bankruptcy Procedure? The Eleventh Circuit recently held the Federal Rules of Bankruptcy Procedure, not the Federal Rules of Civil Procedure, govern adversary proceedings before the district courts. Rosenberg v. DVI Receivables XIV, LLC, 2016 WL 1392642 (11th Cir. 2016).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Holland & Hart LLP, Punitive damages, Bankruptcy, Federal Reporter, US Code, United States bankruptcy court, Eleventh Circuit, Third Circuit, Fourth Circuit, Seventh Circuit
    Location:
    USA
    Firm:
    Holland & Hart LLP
    U.S. Supreme Court to Weigh in on Structured Dismissals and Settlements Circumventing the Bankruptcy Code’s Priority Scheme
    2016-07-12

    On June 28, 2016, the U.S. Supreme Court agreed to hear a challenge to a Third Circuit-affirmed settlement and dismissal of the chapter 11 cases of Jevic Transportation, Inc. (“Jevic”) and certain of its affiliates. SeeOfficial Comm. of Unsecured Creditors v. CIT Grp./Bus. Credit Inc. (In re Jevic Holding Corp.), 787 F.3d 173 (3d Cir. 2015), cert. grantedCzyzewski v. Jevic Holding Corp., No. 15-649, 2016 WL 3496769 (U.S. 2016).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cole Schotz PC, Wage, Bankruptcy, Unsecured debt, Class action, Federal Reporter, Leveraged buyout, Sun Capital Partners, US Code, Worker Adjustment and Retraining Notification Act 1988 (USA), Supreme Court of the United States, United States bankruptcy court, Third Circuit, US District Court for District of Delaware
    Authors:
    Jacob S. Frumkin , Adam H. Morsy
    Location:
    USA
    Firm:
    Cole Schotz PC
    Eleventh Circuit Expands Crawford Ruling
    2016-06-22

    The Eleventh Circuit has made it clear: it will not back down from its decision in Crawford v. LVNV Funding, a decision it issued in 2014 and one which has been the subject of hot debate ever since. In Crawford, the Eleventh Circuit ruled that the filing of a proof of claim was an attempt to collect a debt and the filing of a proof of claim on time-barred debt violated the FDCPA. Crawford v. LVNV Funding, LLC, 758 F.3d 1254 (11th Cir. 2014). Since Crawford, the debate has raged on with several courts weighing in on the subject.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Smith Debnam Narron Drake Saintsing & Myers LLP, Federal Reporter, Collection agency, Fair Debt Collection Practices Act 1977 (USA), Eleventh Circuit, Third Circuit
    Authors:
    Caren Enloe
    Location:
    USA
    Firm:
    Smith Debnam Narron Drake Saintsing & Myers LLP
    Third Circuit Adopts Nuanced View of “Equal Treatment” in Context of Pre-Plan Settlement Offers
    2016-06-10

    The question of what constitutes “equal treatment” is a question as old as law itself. Though a favored topic by the Aristotles and the Rousseaus of the world, the question is not entirely esoteric. The concept plays a central role in the law of bankruptcy – courts occasionally describe the principle of equitable distribution between similarly situated creditors as one of the “pillars” of the Bankruptcy Code.

    Filed under:
    USA, Delaware, Company & Commercial, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, Debtor, Division of property, Third Circuit
    Location:
    USA
    Firm:
    Weil Gotshal & Manges LLP
    Third Circuit Agrees, No Aggregation of Claims Among Creditors to Defeat Preference Minimum Thresholds
    2016-06-03

    The power of a debtor or trustee to avoid preferential transfers that benefit certain creditors over others is critical to achieving one of the primary tenets of the Bankruptcy Code – the equality of treatment among all creditors. This ability to recover preferences prevents a debtor from favoring certain creditors over others by transferring property in the time leading up to a bankruptcy filing. Although these preference powers are broad, they are restrained by certain conditions, including a minimum threshold on amounts that can be avoided.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, Bankruptcy, Debtor, Internal Revenue Service (USA), Trustee, Third Circuit
    Authors:
    Kevin Bostel
    Location:
    USA
    Firm:
    Weil Gotshal & Manges LLP
    Make Me a Tender Offer! EFH Settlement Gets Third Circuit Approval
    2016-05-16

    On May 4, 2016, the Court of Appeals for the Third Circuit held that a bankruptcy settlement in the form of a tender offer did not violate the principles of the bankruptcy process. See opinion here.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Secured creditor, Tender offer, United States bankruptcy court, Third Circuit
    Authors:
    Aditi Kulkarni
    Location:
    USA
    Firm:
    Squire Patton Boggs
    Third Circuit Agrees That When it comes to Fraudulent Transfers, There’s No Room for 20/20 Hindsight
    2016-05-13

    TGIF, right?! Before kick starting your weekend — here’s what you need to know about the recent decision from the United States Court of Appeals for the Third Circuit in the chapter 11 cases of SemCrude L.P. and its debtor affiliates.

    FACTS

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, Fraud, Third Circuit
    Location:
    USA
    Firm:
    Weil Gotshal & Manges LLP
    Third Circuit rules that Philadelphia Newspapers' lenders cannot credit bid
    2010-03-25

    A divided panel of the Third Circuit Court of Appeals affirmed the district court's ruling in In re: Philadelphia Newspapers, et. al. (3d. Cir., Case No. 09-4266) and held that secured creditors do not have a statutory right to credit bid their debt at a sale conducted under a plan of reorganization pursuant to which the debtor elects to provide the secured creditors with the "indubitable equivalent" of their secured claim.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Reed Smith LLP, Bankruptcy, Credit (finance), Debtor, Collateral (finance), Limited liability company, Debt, Secured creditor, Secured loan, Title 11 of the US Code, United States bankruptcy court, Third Circuit, US District Court for Eastern District of Pennsylvania
    Authors:
    Elizabeth A. McGovern
    Location:
    USA
    Firm:
    Reed Smith LLP
    Third Circuit rules secured creditors do not have a right as a matter of law to credit bid in bankruptcy plan sale
    2010-03-25

    This week, in a 2-1 decision affirming the District Court’s reversal of a ruling of the Bankruptcy Court for the Eastern District of Pennsylvania, the United States Court of Appeals for the Third Circuit held that secured creditors do not have a right as a matter of law to credit bid their claim at an auction pursuant to a plan of reorganization where the debtor intends to impose the plan on its secured creditors through a “cramdown” under section 1129(b)(2)(A)(iii) of the Bankruptcy Code; i.e., a plan providing the secured creditors with the “indubitable equivalent” of their secured claim.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Winston & Strawn LLP, Bankruptcy, Credit (finance), Debtor, Collateral (finance), Statutory interpretation, Interest, Secured creditor, Secured loan, US Congress, Title 11 of the US Code, United States bankruptcy court, Third Circuit, US District Court for Eastern District of Pennsylvania
    Location:
    USA
    Firm:
    Winston & Strawn LLP

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