In a decision that once again evidences the Fifth Circuit’s strong stance on the finality of asset sales in bankruptcy absent a stay of the applicable order, on March 8, 2023 the United States District Court for the Southern District of Texas published a memorandum opinion and order affirming a bankruptcy court’s exercise of Bankruptcy Code provisions to strip subrogation rights of certain sureties (the “Sureties”) against an asset purchaser.
“Creative destruction” occurs when something new kills off whatever existed before it.
IPhone Example
Just think, for example, of all the creative destruction that the iPhone has wrought! It has destroyed businesses that provided telephones and phone books, cameras and film, audio recordings and players, newspapers and newsstands, and related services.
In In re Nine West LBO Securities Litigation (Case No. 20-2941) (S.D.N.Y. Dec. 4, 2020), a federal district court denied in part a motion to dismiss claims brought by the Nine West liquidating trustee against former directors (the "Defendants") of The Jones Group, Inc. (the "Company"), Nine West's predecessor, for, among other things, (i) breaches of their fiduciary duties of care and loyalty, and (ii) aiding and abetting breaches of fiduciary duties. The litigation arises from the 2014 LBO of the Company by a private equity sponsor ("Buyer").
The Commodity Futures Trading Commission proposed its first comprehensive overhaul of its bankruptcy rules since 1983. The recommended new rules do not substantively change anything but codify many CFTC interpretations and views developed over 40 years and refresh references to means of communication and recordkeeping practices to reflect current norms.
In the recent decision of Paragon Offshore, No. 16-10386 (CSS), 2021 (Bankr. D. Del. June 28, 2021), the U.S. Bankruptcy Court for the District of Delaware (the court) addressed the issue of whether the Office of the United States Trustee (OUST) could collect its quarterly fees against assets that were previously transferred to a litigation trust (the litigation trust) free and clear of any and all claims, liens and other encumbrances pursuant to a confirmed plan of liquidation.
On Monday, March 10, 2014, the companies that own and operate the Sbarro pizza chain, Sbarro LLC and 33 affiliates, filed for bankruptcy reorganization under Chapter 11 of the federal Bankruptcy Code. The Sbarro companies operate 217 restaurants in the U.S. and there are 582 franchised restaurants, 176 in the U.S. and 406 at international locations.
On January 20, 2023, as few courts, such as the U.S. Bankruptcy Court for the District of Colorado, have consistently done, the U.S. Bankruptcy Court for the Central District of California (the “Bankruptcy Court”) further hewed a path for former cannabis businesses to utilize the protections of the U.S. Code's eleventh title (the "Bankruptcy Code") in spite of a mostly inhospitable (and frequently hesitant) jurisprudence--and the steady opposition of the U.S. Trustee's Office (the "UST").
In legal parlance, the term “standing” embraces several discrete doctrines that govern the capacity of a party to sue and appear before a particular court. These concepts' fluidity should not obscure their importance: a party’s standing is a perpetual jurisdictional question, open to review throughout the lifespan of a particular case or matter and at every appellate level.
Types of Standing
Two Generally Applicable Forms
This article was originally published in Bloomberg Law Professional Perspectives.
The fallout from Silicon Valley Bank’s (SVB) closure continues to unfold, with SVB’s parent company – SVB Financial Group – filing for protection under chapter 11 of the Bankruptcy Code on Friday, March 17th.