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    Divide Over Bankruptcy Code’s Abrogation of Tribal Sovereign Immunity Comes Before the Supreme Court: Lac du Flambeau Band v. Coughlin
    2023-04-26

    On April 24, 2023, the First Circuit’s opinion in Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin came up for oral argument before the Supreme Court. At issue in this appeal is whether this provision’s “abrogat[ion]” of sovereign immunity “as to a governmental unit,” defined to include any “other … domestic government” in section 101(27), embodies a congressional intention to revoke the sovereign immunity of a Native American tribe with sufficient and obvious clarity to be construed as such a revocation.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Reed Smith LLP, US Congress, Supreme Court of the United States
    Location:
    USA
    Firm:
    Reed Smith LLP
    The State of Third-Party Releases After the Purdue Pharma Decision
    2023-06-15

    In a highly anticipated decision issued on May 30, 2023, the Second Circuit Court of Appeals rendered its opinion in Purdue Pharma LP v. City of Grand Prairie (In re Purdue Pharma LP)1 approving a Chapter 11 plan’s inclusion of a nonconsensual release of creditors’ direct claims against non-debtor third parties.

    This client alert describes the history of the case, identifies some of the key takeaways from the decision and outlines where other jurisdictions in the country stand on nonconsensual third-party releases.

    Filed under:
    USA, Healthcare & Life Sciences, Insolvency & Restructuring, Litigation, Hunton Andrews Kurth LLP, Bankruptcy, US Congress, Second Circuit
    Authors:
    Gregory G. Hesse , Kollin Bender
    Location:
    USA
    Firm:
    Hunton Andrews Kurth LLP
    Are Subchapter V Corporate Debtors Subject to the §523(a) Exceptions to Discharge?
    2023-06-15

    Background

    Filed under:
    USA, Company & Commercial, Insolvency & Restructuring, Litigation, Thompson Coburn LLP, US Congress
    Authors:
    Joseph Orbach
    Location:
    USA
    Firm:
    Thompson Coburn LLP
    Who Is A “Party in Interest”: Broad v. Narrow Construction (Truck v. Kaiser at U.S. Supreme Court)
    2023-06-15

    When a federal court approves a [bankruptcy] plan allowing someone to put its hands into another person’s pockets, the person with the pockets is entitled to be fully heard and to have legitimate objections addressed.[Fn. 1]

    Pop Quiz Question:

    Does Insurer, in the following facts, have standing to object to Debtor’s Chapter 11 plan?

    Debtor is in bankruptcy because of asbestos lawsuits.

    Debtor proposes a Chapter 11 plan that is supported by all constituencies—except one:

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Koley Jessen PC, US Congress, Supreme Court of the United States
    Authors:
    Donald L. Swanson
    Location:
    USA
    Firm:
    Koley Jessen PC
    Subchapter V: Providing Hope To Formerly Successful Entrepreneurs
    2023-05-30

    The Bankruptcy Code’s Subchapter V provides hope to formerly successful entrepreneurs. It’s a hope that never before existed.

    I’ll try to explain.

    Formerly Successful Entrepreneurs – A Historical Problem

    The Bankruptcy Code became effective in October of 1979. And I’ve been practicing under the Bankruptcy Code from the beginning: licensed in 1980.

    Here’s an observation that’s been true throughout my career, until enactment of Subchapter V:

    Filed under:
    USA, Insolvency & Restructuring, Koley Jessen PC, US Congress
    Authors:
    Donald L. Swanson
    Location:
    USA
    Firm:
    Koley Jessen PC
    Bankruptcy 101: Claims: Types and Priorities
    2023-05-31

    Bankruptcy Basics for New and Non-Bankruptcy Attorneys

    This entry is part of Nelson Mullins’s ongoing “Bankruptcy Basics” blog series that is intended to address foundational aspects of bankruptcy for new and non-bankruptcy practitioners and professionals. This entry will discuss the general structure of bankruptcy claims and the differences between how unsecured, secured, and priority claims are treated in a bankruptcy case.

    A “claim” against a bankruptcy estate is defined as a:

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Nelson Mullins Riley & Scarborough LLP, US Congress
    Authors:
    John T. Baxter
    Location:
    USA
    Firm:
    Nelson Mullins Riley & Scarborough LLP
    How the “Engaged In” Standard For Subchapter V Eligibility Is Easily Satsified (In re Robinson)
    2023-05-18

    Is a debtor “engaged in commercial or business activities” for Subchapter V eligibility?

    Such question has been addressed on many occasions and by many courts.

    The trend seems to be toward a conclusion that the nature and quantity of “commercial or business activities” required for Subchapter V eligibility is this:

    • Nature = “easily met”; and
    • Quantity = “not much.”

    The latest opinion to confirm the trend is In re Robinson, Case No. 22-2414, Southern Mississippi Bankruptcy Court (issued April 17, 2023; Doc. 90).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Koley Jessen PC, SIPP, US Congress
    Authors:
    Donald L. Swanson
    Location:
    USA
    Firm:
    Koley Jessen PC
    Surprising no one, those pursued to pay for PFAS contamination are buckling under the weight of those claims. Whats next?
    2023-05-17

    Hundreds and hundreds of claims for personal injury and property damage associated with PFAS contamination have been accumulating in the courtroom of a Federal Judge in South Carolina. A little over four years ago the Federal Judicial Panel on Multidistrict Litigation determined that Federal claims that Aqueous Film-Forming Foams (AFFF) containing PFAS used to fight fires had contaminated drinking water had enough in common that they should all be sent to Federal Judge Gergel in South Carolina for disposition.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Mintz, US Environmental Protection Agency, US Congress
    Authors:
    Jeffrey R. Porter
    Location:
    USA
    Firm:
    Mintz
    Surprising no one, those pursued to pay for PFAS contamination are buckling under the weight of those claims. What's next?
    2023-05-17

    Hundreds and hundreds of claims for personal injury and property damage associated with PFAS contamination have been accumulating in the courtroom of a Federal Judge in South Carolina. A little over four years ago the Federal Judicial Panel on Multidistrict Litigation determined that Federal claims that Aqueous Film-Forming Foams (AFFF) containing PFAS used to fight fires had contaminated drinking water had enough in common that they should all be sent to Federal Judge Gergel in South Carolina for disposition.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Mintz, US Environmental Protection Agency, US Congress
    Location:
    USA
    Firm:
    Mintz
    Does Bankruptcy Code Waive Tribal Sovereign Immunity? (Lac Du Flabeau Band v. Coughlin—Oral Arguments At U.S. Supreme Court)
    2023-05-11

    Oral arguments occur on April 24, 2023, before the U.S. Supreme Court in Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, Case No 22-227. Here is a link to the oral arguments transcript.

    What follows is an attempt to, (i) summarize the facts and issue in the case, and (ii) provide a sampling of questions and comments from the justices during oral arguments.

    Facts

    Here’s what happened:

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

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