Many years ago, back when mediation is a rarity in bankruptcy disputes, I asked an old-timer this question:
Why is the bankruptcy system a lagging adopter of mediation?”
A Surprising Answer
The old-timer gave this surprising answer:
“At the time of the Bankruptcy Code’s enactment, the bankruptcy judge was viewed as a mediator in the judge’s own court.”
The old-timer added this. When the Bankruptcy Code was enacted:
The Insolvency and Companies Court has recognised Chapter 11 Proceedings in the US in respect of the manufacturer of controversial surgical mesh products which have generated a significant number of claims worldwide. The British Claimants have had their claims stayed as a result of this recognition.
Re Astora Women’s Health LLC [2022] EWHC 2412 (Ch)
What are the practical implications of this case?
Many years ago, back when mediation is a rarity in bankruptcy disputes, I asked an old-timer this question:
Why is the bankruptcy system a lagging adopter of mediation?”
A Surprising Answer
The old-timer gave this surprising answer:
“At the time of the Bankruptcy Code’s enactment, the bankruptcy judge was viewed as a mediator in the judge’s own court.”
The old-timer added this. When the Bankruptcy Code was enacted:
Where a company's liquidation is necessary, deciding who or where is best placed to administer an orderly wind down for the benefit of creditors can be difficult: the shortfall of assets in an insolvency will highlight jurisdictional differences in approach as to questions of priority, frequently territorial rather than universalist.
In October 2018 Judge Glenn of the United States Bankruptcy Court (New York) considered the common law principles of comity and the English common law Gibbs rule to grant recognition of a Croatian company's settlement agreement which modified both New York and English law.
Background
The interrelationship between an assignment for benefit of creditors (“ABC”) proceeding and an involuntary bankruptcy filing, for the same debtor, is governed by various portions of the Bankruptcy Code.
But that relationship remains ill-defined, nonetheless.
What follows is an attempt to summarize a bankruptcy court opinion dealing with that relationship. And here is two of its main conclusions:
On September 19, 2022, a panel of three appellate judges for the 3rd Circuit heard oral argument in a closely-watched case, In re LTL Management LLC, Case No. 22-2003.
Many a bankruptcy attorney has been approached by an angry client who is owed a large amount from, or has obtained a judgment against another party, but has been frustrated in efforts to collect and wants to “throw them into bankruptcy.” After trying to calm the client down, the attorney will go over the technical requirements for commencing an involuntary bankruptcy case and will undoubtedly carefully explain the financial risks that lie in wait in the event that the putative debtor opposes the bankruptcy and is successful in having it dismissed. Specifically, section 303(j) of
Events are happening quickly these days with Caesars Entertainment. On January 13, holders of second lien notes issued by Caesars Entertainment Operating Company (“CEOC”) filed an involuntary chapter 11 petition against CEOC in the U.S. Bankruptcy Court for the District of Delaware. Two days later, CEOC itself filed a voluntary chapter 11 petition in the U.S. Bankruptcy Court for the Northern District of Illinois, setting up a venue fight over the bankruptcy case. And later that same day, the U.S.
In a 113-page decision (click here to read decision) that is sure to be applauded by lenders and bond traders alike, Judge Alan S. Gold of the United States District Court for the Southern District of Florida, in overturning a Bankruptcy Court opinion that has caused lenders much concern, has issued a stern ruling that provides a bulwark against efforts by creditors and trustees in bankruptcy to expand the scope of the fraudulent conveyance provisions under the Bankruptcy Code.