COVID-19 Cuts a Harsh Path Through the Aviation Sector

A lender’s state law tort claims against “non-debtor third-parties for tortious interference with a contract” were “not preempted” by “federal bankruptcy law,” held the New York Court of Appeals on Nov. 24, 2020. Sutton 58 Associates LLC v. Pilevsky, 2020 WL 6875979, *1 (N.Y. Ct. Appeals, Nov. 24, 2020) (4-3). In a split opinion, the Court of Appeals reversed the Appellate Division’s dismissal of a lender’s complaint against the debtors’ non-debtor insiders. The lender will still have to prove its case at trial.

The Asserted Claims

Introduction

From iconic retail brands like Neiman Marcus to popular entertainment venues like Chuck E. Cheese, business bankruptcies have escalated in 2020 due to the COVID-19 pandemic. Company executives invested in Non-Qualified (NQ) plans risk losing a substantial amount in retirement savings due to guidelines set under Section 409A. These guidelines protect NQ plan assets from a change in corporate control but not from a bankruptcy filing, since NQ plan participants are treated as unsecured creditors.

2020 has seen a significant increase in chapter 11 filings by oil and gas producers. Critical to the operations of these companies, and to the transportation and processing of the producer’s gas, are gathering agreements entered into between the producers and midstream companies. A pivotal question posed at the start of these chapter 11 proceedings is whether the gathering agreements are executory contracts subject to rejection or whether they create real property interests that cannot be rejected in chapter 11 proceedings. The answer depends on who you ask.

The U.S. Bankruptcy Court for the Northern District of Georgia ruled in In re Serendipity Labs, Inc., 620 B.R. 679 (Bankr. N.D. Ga.

On November 25, the U.S. Court of Appeals vacated summary judgment in favor of defendants in an action alleging the defendants violated the FDCPA by attempting to collect a debt that was discharged in a bankruptcy proceeding and no longer owed.

Christopher J Howard, Sullivan & Cromwell LLP

This is an extract from the second edition of GRR's The Art of the Ad Hoc. The whole publication is available here.

Introduction

Over the past four years, midstream firms have struggled to adapt their long-standing practices and adjust their long-held expectations, which were fundamentally disrupted by the outcome of the landmark bankruptcy case, In re Sabine Oil & Gas. Midstream providers have since developed and relied on certain mechanisms and carefully drafted contract language in order to bind upstream companies and their successors in interest to obligations and restrictions contained of midstream agreements.

In re Affordable Auto Repair, Inc., No. 6:19bk18367MW, 2020 Bankr. LEXIS 2366 (Bankr. C.D. Cal. Sept. 2, 2020).

Case Snapshot