Debtors in non-U.S. bankruptcy or restructuring proceedings commonly seek to shield their U.S. assets from creditor collection efforts by seeking "recognition" of those proceedings in the United States in a case under chapter 15 of the Bankruptcy Code. If a U.S. bankruptcy court recognizes the debtor's foreign proceeding, the Bankruptcy Code's automatic stay prevents creditor collection efforts, including the commencement or continuation of any U.S. litigation involving the debtor or its U.S. assets. A U.S.

In a 2021 ruling, the U.S. Court of Appeals for the Second Circuit revived nearly 100 lawsuits seeking to recover fraudulent transfers made as part of the Madoff Ponzi scheme. In one of the latest chapters in that resurrected litigation, the U.S. Bankruptcy Court for the Southern District of New York held in Picard v. ABN AMRO Bank NV (In re Bernard L. Madoff Investment Securities LLC), 654 B.R. 224 (Bankr. S.D.N.Y.

One year ago, we wrote that 2022 would be remembered in the corporate bankruptcy world for the "crypto winter" that descended in November 2022 with the spectacular collapse of FTX Trading Ltd., Alameda Research, and approximately 130 other affiliated companies that ignited the meltdown of many other platforms, exchanges, lenders, and mining operations because they did business with FTX.

Because bankruptcy courts were created by Congress rather than under Article III of the U.S. Constitution, there is a disagreement over whether bankruptcy courts, like other federal courts, have "inherent authority" to impose sanctions for civil contempt on parties that refuse to comply with their orders. The U.S. Court of Appeals for the Second Circuit revisited this debate in In re Markus, 78 F.4th 554 (2nd Cir. 2023).

A helpful analysis of statute of limitations issues for fraudulent transfer claims brought by a bankruptcy trustee under § 544(a)&(b) is provided in a recent Circuit opinion.

• The opinion is Lewis v. Takacs (In re Stone Pine Investment Banking, LLC), Case No. 21-1423, U.S. Tenth Circuit Court of Appeals (decided 12/19/2023).

Overview

A powerful tool afforded to a bankruptcy trustee or a chapter 11 debtor-in-possession ("DIP") is the power to recover pre-bankruptcy transfers that are avoidable under federal bankruptcy law (or sometimes state law) because they were either made with the intent to defraud creditors or are constructively fraudulent because the debtor-transferor received less than reasonably equivalent value in exchange and was insolvent at the time, or was rendered insolvent as a consequence of the transfer.

Judge Jacqueline P. Cox recently found that three Illinois attorneys violated their ethical obligations by failing to return their client’s phone calls. She thus ordered the attorneys to return half of their already-court-approved, and paid, flat fee.

In In re: Dennis Molnar, 19-bk-09525, 2024 WL 190919 (Jan. 17, 2024 N.D, Ill.), the debtor filed a petition seeking relief under chapter 13. Originally, three attorneys from the same firm represented the debtor. The attorneys appeared pursuant to a “no look,” flat-fee program for chapter 13 debtors’ attorneys.

The scope of the Bankruptcy Code's "safe harbor" shielding certain securities, commodity, or forward-contract payments from avoidance as fraudulent transfers has long been a magnet for controversy, particularly after the U.S. Supreme Court suggested (but did not hold) in Merit Mgmt. Grp., LP v. FTI Consulting, Inc., 138 S. Ct.

Alice Belisle Eaton and Billy Clareman Discuss Latest Restructuring

Developments at PLI Event

Practising Law Institute’s “Recent Developments in Distressed Debt, Restructurings,

and Workouts 2024” featured restructuring partner Alice Belisle Eaton and

litigation partner Billy Clareman. Co-chair Alice delivered opening remarks and

spoke on “Market Update: Distressed Debt and Restructurings,” “Corporate

Governance, Officer and Director Risks and Claims in Distressed Situations” and

You can’t make this stuff up. The legal issues are pedestrian. But the facts behind those issues are incredible!

Litigation History

Here’s the boring stuff first.

On January 8, 2024, the U.S. Supreme Court denies certiorari in Mann v. LSQ Funding Group, L.C. (Case No. 23-425). Here’s the procedural background: