On October 17, 2012, Back Yard Burgers, Inc.

The Bottom Line:

The U.S. Bankruptcy Court for the Eastern District of Tennessee ruled in August that an LLC’s creditor could not pierce the LLC’s veil to assert its claim against the LLC’s sole member. In a twist, the LLC’s member, not the LLC, was the debtor in bankruptcy. In re Steffner, No. 11-51315, 2012 WL 3563978 (Bankr. E.D. Tenn., Aug. 17, 2012).

A New York bankruptcy court recently rejected a debtor’s challenge to a consensual state court judgment (“Judgment”) in favor of mortgagee, General Electric Capital Corporation (“GECC”), that had accelerated a debt and obtained a prepetition foreclosure judgment against debtor, 410 East 92nd Street (the “Hotel”), in the amount of approximately $74 million. In re: Madison 92nd St. Associates LLC, 472 B.R. 189 (Bankr. S.D.N.Y. 2012).

In re 400 Walnut Associates, L.P., 2012 BL 140988 (E.D. Pa. June 7, 2012)

CASE SNAPSHOT

The creditor appealed the denial of its claim for pre-petition interest at the contractual default rate. The district court reversed and remanded the case, holding that the bankruptcy court had incorrectly applied an "equitable analysis" in making its decision.

FACTUAL BACKGROUND

On October 10, 2012, Vertis Holdings, Inc. ("Vertis"), and various related entities, filed chapter 11 petitions for bankruptcy in the United States Bankruptcy Court for the District of Delaware.  This is Vertis' third time in bankruptcy in recent years.  As stated in the company's Declaration in Support of Chapter 11 Petitions (the "Decl."), Vertis filed a prepackaged bankruptcy in Delaware in July of 2008.  Vertis filed its first bankruptcy in order to merge with American Color Graphics and restructure some of the company's debt.   Decl.

The Trustee overseeing the liquidation under the Securities Investor Protection Act (“SIPA”) of Lehman Brothers Inc. (“Lehman”) in the U.S. and the Joint Administrator of Lehman Brothers International (Europe) (“LB Europe”) in the U.K. have reached an agreement in principle to resolve $38 billion in asserted claims among Lehman, LB Europe and subsidiaries and affiliates. The agreement is subject to definitive documentation and approval by the Bankruptcy Court in New York and the English High Court. The parties set December 15, 2012 as the deadline to reach a final agreement.

On September 25, 2012, Judge D. Michael Lynn for the United States Bankruptcy Court of the Northern District of Texas held that a “tail provision” for professional fees rendered prepetition survived – and was not cut off by – the debtor’s bankruptcy filing.  In re Texas Rangers Baseball Partners, Case No. 10-43400-DML, 2012 WL 4464550 (Bankr. N.D. Tex. Sept. 25, 2012).

Background

This article is Part Seven in a seven-part series on how to structure sales and what to do when your customer fails to pay.

On August 2, 2012, the United States Court of Appeals for the Fifth Circuit held that a requirements contract for electricity is a forward contract for purposes of section 546(e) of the Bankruptcy Code and, therefore, settlement payments made under the contract are exempt from avoidance as preferences. Claude Lightfoot v.