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    11th Circuit Applies Totality-of-the-Circumstance Analysis to Judicial Estoppel
    2017-09-29

    On September 18, in an en banc review, the Court of Appeals for the Eleventh Circuit overruled, in part, seminal casesBarger v. City of Cartersville, 348 F.3d 1289 (11th Cir. 2003) and Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282 (11th Cir. 2002), adopting a totality-of-the-circumstances analysis when facing questions of judicial estoppel.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Troutman Pepper, Bankruptcy, United States bankruptcy court, Eleventh Circuit
    Authors:
    David Long, Jr. , Andrew B. Buxbaum , Timothy "Tim" J. St. George
    Location:
    USA
    Firm:
    Troutman Pepper
    Supreme Court Declines to Resolve Circuit Split on Debt Recharacterization
    2017-09-19

    On August 10, 2017, the U.S. Supreme Court rescinded the grant of certiorari in PEM Entities LLC v. Levin on the grounds that review had been “improvidently granted.” The case seemingly provided a perfect vehicle to resolve the circuit split on whether federal or state law governs debt recharacterization in bankruptcy, and less than two months after the Court first agreed to hear the case, its dismissal came as a surprise.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Skadden Arps Slate Meagher & Flom LLP, Debt, Supreme Court of the United States, United States bankruptcy court, Third Circuit, Fourth Circuit, Sixth Circuit, Tenth Circuit
    Authors:
    Christine A. Okike
    Location:
    USA
    Firm:
    Skadden Arps Slate Meagher & Flom LLP
    Equitable Mootness Doctrine Persists in Bankruptcy Appeals
    2017-09-19

    In recent years, courts have become increasingly critical of the doctrine of equitable mootness, a judicially created abstention doctrine that allows appellate courts to dismiss appeals from a bankruptcy court’s confirmation order in certain circumstances. Although the doctrine is meant to be applied only sparingly, to avoid unscrambling complex reorganizations on appeal, it has been invoked in noncomplex cases or where limited relief is practicable. As a result, some circuit courts have urged a more limited application of the doctrine.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Skadden Arps Slate Meagher & Flom LLP, Bankruptcy, Second Circuit, United States bankruptcy court, Third Circuit
    Location:
    USA
    Firm:
    Skadden Arps Slate Meagher & Flom LLP
    Brooks v. Key Bank (In re Brooks
    2017-09-25

    (Bankr. S.D. Ind. Sep. 14, 2017)

    The bankruptcy court grants the university’s motion for summary judgment, determining that the student loan debt is nondischargeable. The debtor filed the adversary proceeding alleging repayment would present an undue hardship. The debtor did not respond to the university’s motion and failed to present any evidence to satisfy the Brunner test. Opinion below.

    Judge: Carr

    Attorney for Debtor: Eric C. Redman, Redman Ludwig PC

    Attorney for University: Constantine Alexander Hortis, Maryland Attorney General

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Stoll Keenon Ogden PLLC, United States bankruptcy court
    Authors:
    Matt Lindblom
    Location:
    USA
    Firm:
    Stoll Keenon Ogden PLLC
    Is Time Really of the Essence? Not in Bankruptcy
    2017-09-25

    Few words in real estate transactions inspire as much fear as "time is of the essence." If a closing date or other deadline is time-is-of-the-essence (TOTE), neither party can postpone the closing or extend the deadline without the other party's consent. So if a buyer is unable to timely close (often because they are unable to obtain financing) and the seller is unwilling to postpone the closing, the buyer may forfeit its security deposit and lose a valuable business opportunity. The consequences for failing to meet a TOTE closing are harsh and seemingly unavoidable.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Wilk Auslander LLP, United States bankruptcy court
    Authors:
    Eloy A. Peral
    Location:
    USA
    Firm:
    Wilk Auslander LLP
    Profit Sharing Ruled an Unenforceable Anti-Assignment Restriction
    2017-09-14

    Reprinted with permission from the September 14, 2017 issue of The Legal Intelligencer. © 2017 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Real Estate, Troutman Pepper, United States bankruptcy court
    Authors:
    Francis J. Lawall , John Henry Schanne, II
    Location:
    USA
    Firm:
    Troutman Pepper
    New Delaware Chapter 11 Filing - Aerogroup International, Inc.
    2017-09-15

    Aerogroup International, Inc., along with five of its affiliates and subsidiaries, has filed a petition for relief under Chapter 11 in the Bankruptcy Court for the District of Delaware (Lead Case No. 17-11962).

    Filed under:
    USA, Insolvency & Restructuring, Cole Schotz PC, Bankruptcy, United States bankruptcy court, US District Court for District of Delaware
    Location:
    USA
    Firm:
    Cole Schotz PC
    Not a Time for Second Thoughts: EDNY Holds Settlement Approval Stage Is No Escape Route
    2017-09-11

    U.S. Bankruptcy Rule 9019 provides that on a motion brought by a trustee (and thus a chapter 11 debtor-in-possession as well) the court may approve a settlement. The prevailing view is that due to the court’s approval requirement, pre-court approval settlement agreements are enforceable by the debtor but not against the debtor. The District Court for the Eastern District of New York recently disagreed. It held that the statutory approval requirement is not an opportunity for the debtor to repudiate the settlement.

    Filed under:
    USA, Insolvency & Restructuring, Dechert LLP, United States bankruptcy court
    Authors:
    Shmuel Vasser , Yehuda Goor
    Location:
    USA
    Firm:
    Dechert LLP
    New Delaware Chapter 11 Filing - Vitamin World, Inc.
    2017-09-12

    Vitamin World, Inc., along with eight of its affiliates and subsidiaries, has filed a petition for relief under Chapter 11 in the Bankruptcy Court for the District of Delaware (Lead Case No. 17-11933). In the Petition, Vitamin World reports $50 million to $100 million in assets and $10 million to $50 million in liabilities.

    Filed under:
    USA, Insolvency & Restructuring, Cole Schotz PC, Bankruptcy, United States bankruptcy court, US District Court for District of Delaware
    Location:
    USA
    Firm:
    Cole Schotz PC
    Iowa Legislature Introduces Asbestos Litigation Reforms
    2017-09-12

    I. Overview

    Filed under:
    USA, Iowa, Insolvency & Restructuring, Litigation, Personal Injury, K&L Gates LLP, Bankruptcy, United States bankruptcy court
    Authors:
    Amy Ream
    Location:
    USA
    Firm:
    K&L Gates LLP

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