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    “Fiduciary Capacity” Discharge Exception—At U.S. Supreme Court (Spring Valley v. Forrest)
    2022-12-29

    A bankruptcy discharge “does not discharge an individual debtor from any debt– . . . for fraud or defalcation while acting in a fiduciary capacity.” 11 U.S.C. § 523(a)(4).

    The effect of this “fiduciary capacity” statute is newly before the U.S. Supreme Court on a petition for certiorari in Spring Valley Produce, Inc. v. Forrest, Case No. 22-502.

    The question presented in Spring Valley is this:

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Koley Jessen PC, Supreme Court of the United States
    Authors:
    Donald L. Swanson
    Location:
    USA
    Firm:
    Koley Jessen PC
    Substantial Contribution: A New Decision from the Third Circuit
    2022-12-29

    It’s often hard to persuade a bankruptcy court to grant a motion for substantial contribution. Any attorney thinking about making a motion should first ask herself two questions. First, has my work benefitted both my client and other creditors? Second, did my work result in more than an incidental benefit to the bankruptcy estate? If the answer to either question is no, then the attorney should forget about making the motion. The time spent on it will be wasted, and the motion will be denied.

    Filed under:
    USA, Company & Commercial, Insolvency & Restructuring, Litigation, Patterson Belknap Webb & Tyler LLP, Third Circuit
    Authors:
    Daniel A. Lowenthal
    Location:
    USA
    Firm:
    Patterson Belknap Webb & Tyler LLP
    5 Trends to Watch: 2023 Financial Restructuring
    2022-12-21
    1. Companies Seek More Liquidity – As access to capital may decrease in the coming year, companies on the periphery of needing more operations income are reaching out to lenders to capture the full amount of capital they can borrow currently.
    2. Correction in Valuations of Companies Without Apparent Underlying Assets – Investors are scrutinizing the valuations of companies more closely, particularly those whose probability of success is tied to nascent products or services.
    3. Operations Right-Sizing is Underway – Companies are
    Filed under:
    USA, Insolvency & Restructuring, Greenberg Traurig LLP, Supply chain, Coronavirus
    Authors:
    Shari L. Heyen , David B. Kurzweil
    Location:
    USA
    Firm:
    Greenberg Traurig LLP
    Second Circuit Determines Agent’s Mistaken Payment of Principal to Lenders Does Not Invoke “Discharge-For-Value” Exception to Restitution
    2022-12-21

    On September 8, 2022, a three-judge panel in the United States Court of Appeals for the Second Circuit (the “Second Circuit”) reversed the United States District Court for the Southern District of New York (the “District Court”) when it determined that lenders of a syndicated loan facility to Revlon, Inc.

    Filed under:
    USA, New York, Banking, Insolvency & Restructuring, Litigation, Vinson & Elkins LLP, Second Circuit, United States bankruptcy court, US District Court for the Southern District of New York
    Authors:
    William L. Wallander , David S. Meyer , Steven M. Abramowitz , Bradley Foxman , Kristie Torkildsen Duchesne
    Location:
    USA
    Firm:
    Vinson & Elkins LLP
    2022 Amendments to the Bankruptcy Rules
    2022-12-21

    The latest amendments to the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”) took effect on December 1, 2022. This collection of modifications may be broadly divided into two categories: (i) amendments and a new rule promulgated to account for the Small Business Reorganization Act of 2019 (the “SBRA”), and (ii) amendments clarifying or consolidating non-SBRA specific Bankruptcy Rules.

    SBRA-Related Amendments

    Filed under:
    USA, Insolvency & Restructuring, Mintz, US Congress
    Location:
    USA
    Firm:
    Mintz
    ABC Details In Illinois: Under Common Law Of Trusts
    2022-12-22

    Assignments for benefit of creditors (“ABC”) are rarely used in these United States. That’s for two reasons: (i) some states have no ABC statute and do not recognize the common law of ABCs, and (ii) other states have onerous ABC statutes that no one wants to use.

    The State of Illinois is an exception: ABCs are regularly and frequently used there, under the common law of trusts, because the ABC process is an efficient and effective tool for liquidating a failed or failing business. There is no ABC statute in Illinois.

    Filed under:
    USA, Illinois, Insolvency & Restructuring, Koley Jessen PC, Internal Revenue Service (USA), LinkedIn, Thomson Reuters, Uniform Commercial Code (USA), Illinois Supreme Court
    Authors:
    Donald L. Swanson
    Location:
    USA
    Firm:
    Koley Jessen PC
    Family Office Feature: Bankruptcy and Estate Planning Considerations for Crypto Assets
    2022-12-19

    The market for crypto assets has recently experienced significant tumult as evidenced by the bankruptcy filings of several key crypto players, including Three Arrows Capital, Voyager Digital, Celsius Networks, FTX and, most recently, BlockFi. These bankruptcy cases give rise to numerous issues for investors holding crypto assets, which can be mitigated with proper diligence and planning. In addition, there are several estate planning and trust-specific considerations that should be addressed when holding crypto assets (or determining whether to invest in crypto assets).

    Filed under:
    USA, Insolvency & Restructuring, Loeb & Loeb LLP, Bitcoin, Cryptocurrency, Insolvency, PayPal, FTX
    Authors:
    Noah Weingarten , Paul N. Frimmer
    Location:
    USA
    Firm:
    Loeb & Loeb LLP
    Tenth Circuit BAP Holds that Section 541 of the Bankruptcy Code Doesn’t Invalidate Transfer Restrictions in LLC Operating Agreements
    2022-12-19

    In a recent decision by the Tenth Circuit Bankruptcy Appellate Panel, the court held that a chapter 7 trustee could not sell an LLC membership interest pursuant to section 363 of the Bankruptcy Code because of a transfer restriction within the LLC operating agreement. Malloy v. Trak-1 Technology Inc.(In re Kramer), No. 21-005, 2022 WL 17176411 (B.A.P. 10th Cir. Nov. 23, 2022).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Nelson Mullins Riley & Scarborough LLP, US Congress
    Authors:
    Shane G. Ramsey
    Location:
    USA
    Firm:
    Nelson Mullins Riley & Scarborough LLP
    No Chapter 15 Recognition Absent Qualifying “Foreign Proceeding”
    2022-12-20

    On December 5, 2022, in In re Global Cord Blood Corp., 2022 WL 17478530 (Bankr. S.D.N.Y. Dec. 5, 2022) (“Global Cord”), the U.S. Bankruptcy Court for the Southern District of New York (the “Court”) denied recognition of a proceeding pending in the Grand Court of the Cayman Islands (the “Cayman Proceeding” and the court, the “Cayman Court”) because it was more like a corporate governance and fraud remediation effort than a collective proceeding for the purpose of dealing with reorganization or liquidation, as Chapter 15 of the Bankruptcy Code requires.

    Filed under:
    Global, USA, Compliance Management, Insolvency & Restructuring, Litigation, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Corporate governance, Mediation, Liquidation
    Authors:
    Jacob A Adlerstein , Paul M. Basta , Brian Bolin , Robert Britton , Kelley A. Cornish , Alice Belisle Eaton , Brian S. Hermann , Christopher Hopkins , Kyle J. Kimpler , Alan W Kornberg , Elizabeth R. McColm , Andrew M. Parlen , Andrew N. Rosenberg , John Weber , Kenneth S. Ziman
    Location:
    Global, USA
    Firm:
    Paul, Weiss, Rifkind, Wharton & Garrison LLP
    Judge drain tackles private equity and fraudulent transfers in ‘tops’ decision
    2022-12-16

    On October 12, the Honorable Robert D. Drain, U.S. Bankruptcy Judge for the Southern District of New York, issued his final decision from the bench in the bankruptcy cases of supermarket chain Tops Holdings II Corporation (“Tops”). The decision came in an adversary proceeding seeking to avoid four dividend payments totaling $375 million from 2009–2013 paid to the Tops’ private equity investors (the “PE Group”) as constructive and actual fraudulent transfers and also hold the director-defendants responsible for breaching their fiduciary duties.

    Filed under:
    USA, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, White Collar Crime, A&O Shearman, Private equity, Clawback/avoidance/preferences/fraudulent transfers, Internal Revenue Service (USA), United States bankruptcy court
    Authors:
    Jordan Wishnew , Allison Selick
    Location:
    USA
    Firm:
    A&O Shearman

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