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    Lenders Beware: Make Sure Your Borrower’s Organizational Documents’ Blocking Director Provisions Comply With State Law
    2016-06-07

    Many lenders attempt to render their borrower bankruptcy remote by requiring the borrower to have on its board a director, known as a “blocking director,” whose consent is required for any bankruptcy filing. However, in doing so, the lender needs to make sure the organizational documents which impose this condition on the buyer comply with requirements of the law of the state in which the borrower is organized. If they don’t, a lack of the blocking director’s consent may not prevent the borrower from filing bankruptcy.

    Filed under:
    USA, Illinois, Michigan, Insolvency & Restructuring, Litigation, Holland & Hart LLP, Bankruptcy, Debtor, Limited liability company
    Location:
    USA
    Firm:
    Holland & Hart LLP
    Getting the Most Bang for Your 503(b)(9) Bucks
    2016-06-07

    Many creditors who have supplied goods to a debtor before a bankruptcy case begins think their only prospects for recovery will be pennies on the dollar. While often times, pre-petition claims are relegated to receive small, if any, distributions, there is a unique carve-out in Section 503(b)(9) of the Bankruptcy Code that elevates “goods” supplied in the 20 days before a bankruptcy filing to administrative expense status.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cole Schotz PC, Bankruptcy, Debtor, Fourth Circuit
    Authors:
    Jill B. Bienstock
    Location:
    USA
    Firm:
    Cole Schotz PC
    Litigation Funder Communications Protected by the Attorney-Client Privilege and Work Product Doctrine
    2016-06-08

    Addressing a novel issue in In re: International Oil Trading Company, LLC, 548 B.R. 825 (Bankr. S.D. Fla. 2016), the United States Bankruptcy Court for the Southern District of Florida recently denied in part an involuntary debtor’s motion to compel production of communications between the judgment creditor who had filed the involuntary bankruptcy petition and the petitioner’s litigation funder. The Court found that the attorney-client privilege and work product protection were applicable to certain disclosures made to the litigation funder, a non-lawyer third-party.

    Filed under:
    USA, Florida, Insolvency & Restructuring, Legal Practice, Litigation, Dechert LLP, Bankruptcy, Work-product doctrine, Attorney-client privilege, Discovery, United States bankruptcy court
    Authors:
    Gary J Mennitt , Shmuel Vasser , Anne Gruner
    Location:
    USA
    Firm:
    Dechert LLP
    The 5th edition of the Bankruptcy Deadline Checklist, authored by Norman Pernick and edited by David Dean and Jonathan Grasso, has just been released by the American Bar Association
    2016-06-02

    The Bankruptcy Deadline Checklist is a quick reference guide for those who handle bankruptcy cases including judges, lawyers, paralegals, credit managers, collection agents, professors, law students, and others.

    Filed under:
    USA, Insolvency & Restructuring, Cole Schotz PC, Bankruptcy, American Bar Association
    Authors:
    Norman L. Pernick , G. David Dean , Jonathan A. Grasso
    Location:
    USA
    Firm:
    Cole Schotz PC
    Chapter 11 cases move fast - First day motions
    2016-06-02

    In my May 26th post, I raised several questions that unsecured creditors in any Chapter 11 case should know the answers to and take action where appropriate.

    Filed under:
    USA, Insolvency & Restructuring, Fox Rothschild LLP
    Authors:
    Heather L. Ries
    Location:
    USA
    Firm:
    Fox Rothschild LLP
    Bachmanity - From Sizzle to Fizzle and Maybe Bachruptcy (Silicon Valley - Episode 24)
    2016-06-03

    At its heart, Episode 24 was about relationships – from the wayward dating lives of Richard and Dinesh to Big Head and Ehrlich’s marriage of “Bachmanity,” the Pied Piper entourage found themselves faced with the messy unraveling of unsuccessful relationships.

    Filed under:
    USA, Insolvency & Restructuring, Sheppard Mullin Richter & Hampton LLP, Bankruptcy, Unsecured debt, Liquidation, United States bankruptcy court
    Location:
    USA
    Firm:
    Sheppard Mullin Richter & Hampton LLP
    Supreme Court’s discharge exception ruling gives creditors more options
    2016-06-03

    One goal of bankruptcy for individuals is the discharge of debts, meaning that, upon the successful completion of their bankruptcy case, the debtor is no longer personally responsible for the obligations owed prior to the bankruptcy filing. There are certain exceptions to the discharge that apply to particular debts, generally for obligations on debts that are either preferred (such as certain taxes or support obligations) or debts that were incurred under circumstances perceived as bad acts (such as willful and malicious injury or fraud).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White Collar Crime, Thompson Coburn LLP, Debtor, Fraud, Debt, Bankruptcy discharge, Supreme Court of the United States
    Authors:
    Brian W. Hockett
    Location:
    USA
    Firm:
    Thompson Coburn LLP
    Third Circuit Agrees, No Aggregation of Claims Among Creditors to Defeat Preference Minimum Thresholds
    2016-06-03

    The power of a debtor or trustee to avoid preferential transfers that benefit certain creditors over others is critical to achieving one of the primary tenets of the Bankruptcy Code – the equality of treatment among all creditors. This ability to recover preferences prevents a debtor from favoring certain creditors over others by transferring property in the time leading up to a bankruptcy filing. Although these preference powers are broad, they are restrained by certain conditions, including a minimum threshold on amounts that can be avoided.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, Bankruptcy, Debtor, Internal Revenue Service (USA), Trustee, Third Circuit
    Authors:
    Kevin Bostel
    Location:
    USA
    Firm:
    Weil Gotshal & Manges LLP
    Nelson v. Fifth Third Bank (In re Brunsman)
    2016-06-03

    (6th Cir. B.A.P. June 1, 2016)

    The Sixth Circuit B.A.P. reverses the bankruptcy court’s sua sponte granting of summary judgment in favor of the trustee. The trustee brought the action to avoid the appellants’  liens in the debtor’s aircraft. The bankruptcy court abused its discretion in granting summary judgment because its decision was not based on undisputed facts. Instead, the bankruptcy court based its decision on assumptions derived from the appellants’ inability to produce sufficient documentation. Opinion below.

    Judge: Harrison

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Stoll Keenon Ogden PLLC, United States bankruptcy court, Sixth Circuit
    Authors:
    Matt Lindblom
    Location:
    USA
    Firm:
    Stoll Keenon Ogden PLLC
    Even a Golden Share can’t stop bankruptcy
    2016-06-06

    In a 10-page decision dated June 6, 2016, Judge Carey of the Delaware Bankruptcy Court denied a motion to dismiss filed by a holder of a “Golden Share” of Intervention Energy Holdings, LLC (the “Debtor”). Judge Carey’s opinion is available here (the “Opinion”). A “Golden Share” is “A type of share that gives its shareholder veto power over changes to the company’s charter.

    Filed under:
    USA, Insolvency & Restructuring, Fox Rothschild LLP
    Location:
    USA
    Firm:
    Fox Rothschild LLP

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