U.S. Bankruptcy Court for the Western District of North Carolina, October 14, 2021
Two recent decisions from Judge Laurie Selber Silverstein of the United States Bankruptcy Court for the District of Delaware address common-interest and attorney work-product protection issues that arose in the bankruptcy case of In re Imerys Talc America, Inc., No. 19-10289 (Bankr. D. Del.).1 Those decisions delineate the interests (and concomitant privilege and work-product protections) of certain parties in Chapter 11 cases, and their reasoning provides instructive guidance on those often misunderstood issues outside of bankruptcy as well.
When it comes to corporate restructuring, the focus tends to remain firmly on the dollars and cents while the immigration consequences for the company’s foreign national employees are sometimes the last items considered, if considered at all. However, these immigration consequences can be quite significant and can include the loss of critical employees or lead to employer sanctions if employees are employed without valid work authorization.
Exploring the bounds of concreteness and traceability following the Supreme Court’s landmark decision in TransUnion LLC v. Ramirez, the Sixth Circuit in Krueger v. Experian, et al. recently reversed a grant of summary judgment in favor of a lender in a Fair Credit Reporting Act (FCRA) case, finding that the plaintiff had a sufficiently concrete injury to support Article III standing.
On October 14, 2021, Gulf Coast Health Care of Pensacola, FL, a healthcare company with 27 skilled nursing centers and two assisted living locations throughout Florida, Georgia and Mississippi, filed a petition for relief under Chapter 11 of the Bankruptcy Code in the Bankruptcy Court for the District of Delaware (Case No. 21-11336).
On October 14, 2021, Teligent, Inc. of Iselin, NJ, a specialty generic pharmaceutical company, filed a petition for relief under Chapter 11 of the Bankruptcy Code in the Bankruptcy Court for the District of Delaware (Case No. 21-11332). As of August, 31st, the company reports $85 million in assets and $135.8 million in total debts.
On October 10, 2021, Judge Colleen McMahon of the U.S. District Court for the Southern District of New York entered a temporary restraining order, delaying implementation of Purdue Pharma’s plan of reorganization, which was confirmed by Bankruptcy Judge Robert Drain on September 17th, pending argument on the U.S.
Due to its relation to the state of the economy, a bankruptcy lawyer’s practice can be highly cyclical – actually, counter-cyclical. In the last 30 years or so we have seen a number of economic downturns – the bankruptcy boom of the late ‘80’s/early ‘90’s; the dot-com bubble of the late 90’s, and the great recession beginning in the late 2000s. When Covid-19 arrived and much of the economy shut down, most predicted another recession. Bankruptcy practitioners prepared to become very busy.
Third-party, or nondebtor, releases have continued to attract attention from both commentators and legislators in the wake of recent cases such as Purdue Pharma LP, Boy Scouts of America and USA Gymnastics. Most recently, Senators Elizabeth Warren (D-Mass.), Dick Durbin (D-Ill.) and Richard Blumenthal (D-Conn.), and Representatives Jerrold Nadler (D-N.Y.) and Carolyn B.
In Holliday v. Credit Suisse Securities USA LLC, United States District Court for the Southern District of New York ("SDNY") Judge George B. Daniels affirmed the dismissal of state law transfer avoidance claims related to a leveraged securities buyout transaction.