Zone of Insolvency

Zone of Insolvency

Category Archives: US

Subscribe to US RSS Feed

SCOTUS Ends Structured Dismissals that Circumvent Priority Rules

Posted in US

TruckPhoto_WEBEarlier today, in Czyzewski v. Jevic Holding Corp., the Supreme Court put an end to “structured dismissals” that allow a debtor to leave bankruptcy while circumventing the Bankruptcy Code’s creditor payment priority scheme.

A Chapter 11 debtor generally has three options for exiting bankruptcy: (1) a confirmed plan of reorganization (or liquidation); (2) conversion to Chapter 7 and liquidation of the debtor’s estate; or (3) dismissal of the bankruptcy case entirely. Chapters 11 and 7 both broadly require the debtor’s estate to make distributions to creditors in accordance with a statutorily mandated order of priorities (although Chapter 11 … Continue Reading

Appeals Court Strengthens Protections for Bankruptcy Committee Members

Posted in Bankruptcy Courts, US

Serving on a court-appointed bankruptcy committee can come with many benefits, and the list just got a little longer. In Blixseth v. Brown, the Ninth Circuit held that committee members enjoy some of the same protections as trustees when it comes to potential attacks for actions taken during a bankruptcy case. Applying the Barton doctrine, the court held that a committee member could not be sued outside the bankruptcy court for actions taken in its committee member capacity without bankruptcy court approval.


In the late 1990s, Timothy Blixseth (“Blixseth”) and Edra Blixseth (“Edra”), then husband and wife, developed … Continue Reading

Delaware Bankruptcy Court Limits Access to Emails in Cross-Border Bankruptcy Case

Posted in US

A recent decision by Judge Sontchi in the Bankruptcy Court for the District of Delaware casts some light on the methods that representatives of non-U.S. debtors can—and can’t—use to track down those who owe such debtors money.

The Representatives of the Irish liquidation proceeding for Irish Bank Resolution Corporation Limited (“IBRC”) obtained recognition of the Irish proceeding under Chapter 15 of the Bankruptcy Code on December 18, 2013. Following that recognition, the Representatives sought to use the discovery mechanisms available in the United States to gain access to the contents of a Yahoo email account maintained in the name of … Continue Reading

Good Deeds May Be Rewarded in Chapter 7—at least in the Sixth Circuit

Posted in US

ThinkstockPhotos-123820749Under the Bankruptcy Code, a creditor may be reimbursed its actual and necessary expenses in making a “substantial contribution” in a chapter 9 or 11 case. Whether a creditor has made a substantial contribution is a question of fact, but generally requires that a creditor demonstrate a tangible benefit to the estate. It is unlikely that a creditor would “throw good money after bad” and attempt to make a substantial contribution in a chapter 7 case where creditor recoveries are typically limited to pennies on the dollar. There may nevertheless be instances where a creditor’s actions substantially contribute to a … Continue Reading

Bankruptcy Court Authorizes Hellas II Liquidators to Proceed with Claims against Apax, TPG and Others

Posted in US

ThinkstockPhotos-454037465Chadbourne & Parke LLP currently represents the English liquidators of Hellas Telecommunications (Luxembourg) II SCA, a company that formerly owned one of the largest mobile phone operators in Greece. On behalf of the English liquidators, in 2012 Chadbourne obtained an order from the US Bankruptcy Court from the Southern District of New York granting Chapter 15 recognition of Hellas II’s liquidation proceeding. In March 2014, on behalf of the English liquidators, Chadbourne filed a lawsuit in the New York bankruptcy court asserting New York fraudulent transfer law and unjust enrichment claims and seeking the recovery of approximately €1 billion that … Continue Reading

Consensual Third-Party Releases: What Constitutes “Consent”?

Posted in US

ProductionLine_117192563There has been a lot of discussion, by both the courts and practitioners, regarding whether the bankruptcy court, as part of a chapter 11 plan, can release a third party from creditors’ claims over the objection of such creditors. We have talked about these non-consensual third-party releases on this blog as well. Courts are not unanimous on this issue, and the controversy provides something to talk about. Less time is spent discussing the less remarkable statement that bankruptcy courts can approve third-party releases when creditors consent to such release. However, what constitutes consent?

Earlier this summer, the bankruptcy court for … Continue Reading

Narrow Means Narrow

Posted in US

SupremeCourt_178740915_100dpiOn May 26, 2015, the Supreme Court of the United States (SCOTUS) decided Wellness International Network, Ltd. v. Sharif—another case addressing issues raised in the wake of the Court’s “narrow” Stern v. Marshall decision. While the case clarified some of the jurisdictional issues raised by litigants post-Stern, many issues remain and each Justice seems more content than the next to decide these issues on the narrowest grounds possible.… Continue Reading

Difficulties in Pursuing Non-Bankruptcy Litigation in Bankruptcy Court

Posted in US

When a dManholding_CaliforniaStateCourt_Signefendant in a lawsuit files for bankruptcy, the bankruptcy court will not necessarily have jurisdiction over the pending litigation. The court must determine that the case is either “core” or “related” to the bankruptcy. In Ammini v. Labgold (In re Labgold), Case No. 14-01043, decided on June 16, 2015, the Bankruptcy Court for the Eastern District of Virginia determined that it no longer had jurisdiction to adjudicate litigation involving the debtor—even though the litigation fell within the court’s “core” jurisdiction when first brought to the bankruptcy court—in part because the debtor/defendant had been denied a discharge … Continue Reading

In re Nobel Group, Inc.: Just Kidding–The Bankruptcy Court Doesn’t Really Have Jurisdiction After All

Posted in US

ThinkstockPhotos-89679735In Nobel Group, Inc. v. Cathay Bank (In re Nobel Group, Inc.), the Bankruptcy Court for the Northern District of California reviewed the scope of its jurisdiction post-confirmation and held that, notwithstanding plan provisions stating the contrary, the court did not have jurisdiction over the reorganized debtor’s claims asserted against its previously secured creditor.… Continue Reading

Non-Consensual Third-Party Releases: Eleventh Circuit Joins “Pro-Release” Majority

Posted in US

ThinkstockPhotos-99188298Circuit courts are divided as to whether provisions of a bankruptcy plan of reorganization may release a non-debtor from creditors’ claims over the objection of a non-consenting creditor (i.e. non-consensual third-party releases). A majority of courts will permit non-consensual third-party releases under certain limited circumstances. This issue has been in the news recently with speculation that the treatment of non-consensual third-party releases was a contributing factor in the decision by the debtors in the Caesars bankruptcy cases to file for bankruptcy in the Bankruptcy Court for the Northern District of Illinois (which is located in the Seventh Circuit—a circuit that … Continue Reading

Think You Have a “Good Faith, for Value” Defense? Value to Creditors is the Key!

Posted in US

EricpicFraudulent transfer statutes were enacted to protect creditors from improper depletion of a debtor’s assets.  They generally accomplish this goal by allowing creditors (or a bankruptcy estate representative) to avoid transactions that are either actually or constructively fraudulent as to creditors, and to recover some or all of the proceeds of the transaction.  For example, if a leveraged buyout leaves a company insolvent, amounts paid to pre-buyout shareholders may be clawed back in a constructive fraudulent transfer action, even if those shareholders had nothing to do with orchestrating the buyout.

However, many fraudulent transfer laws contain special protections to limit … Continue Reading

“Deepening Insolvency” Staggers On

Posted in US

122507381The Third Circuit Court of Appeals recently passed on a chance to join numerous other federal and state jurisdictions in rejecting “deepening insolvency” as an independent tort, leaving the doctrine weakened, but still technically viable in the significant bankruptcy arena. However, in In re Lemington Home for the Aged, the Court did strongly indicate that the doctrine’s days are numbered, noting that its recognition of deepening insolvency as a tort “is problematic, and at the earliest appropriate opportunity . . . should be revisited.”

History of the Doctrine

Deepening insolvency refers to the wrongful prolongation of a corporation’s life, … Continue Reading

Don’t Forget to Object!

Posted in US

526495477On January 23, 2015, the Eleventh Circuit recognized the res judicata effect of provisions contained in a bankruptcy plan of reorganization that released all claims against a third-party guarantor. In deciding In re FFS Data, Inc., the court examined (i) the plain language of the plan provisions to determine whether a particular claim was included in the stated releases and (ii) whether the requirements for res judicata were met such that the confirmation order should be given preclusive effect.

Continue Reading

Third Time’s the Charm: Supreme Court May Finally Clarify Bankruptcy Courts’ Power

Posted in US

SupremeCourt_178740915_100dpiOn January 14, 2015, the Supreme Court of the United States heard oral argument in Wellness International Network, Limited v. Sharif, a case that gives SCOTUS the opportunity to finally clarify the constitutional limits of bankruptcy courts’ decision-making power raised by its 2011 decision in Stern v. Marshall. But as we saw with last year’s decision in Executive Benefits Insurance Agency v. Arkison, just because SCOTUS has an opportunity to resolve Stern uncertainty and restore clarity to bankruptcy litigation does not mean that it will do so. It therefore remains an open question whether clarity will be … Continue Reading

A Refresher on Constitutional Mootness and Its Application to Lift-Stay Motion Appeals

Posted in US

joshConstitutional mootness is a threshold question for determining whether a court has jurisdiction over an appeal. It arises from the “case or controversy” requirement under Article III of the U.S. Constitution – if no “case or controversy” exists for which the court may grant effective relief, the court lacks jurisdiction and must dismiss the appeal as moot. Specifically, constitutional mootness is characterized by the occurrence of an event during the pendency of an appeal that makes it impossible for the court to grant any effective relief to a moving party, even if that party were to prevail on appeal.… Continue Reading

Bankruptcy Court Slaps Down Chapter 11 Filing Used as a Litigation Tactic

Posted in US

Derma PenChapter 11 of the Bankruptcy Code is designed to allow struggling companies to reorganize their debts and emerge as stronger, healthier companies or to liquidate in an orderly fashion. In either case, the company better be struggling, as made clear in a recent decision in In re Derma Pen, LLC, No. 14-11894, 2014 WL 7269762 (Bankr. D. Del. Dec. 19, 2014). In Derma Pen, the Bankruptcy Court for the District of Delaware dismissed Derma Pen, LLC’s (“Derma Pen”) chapter 11 case because it lacked a good faith attempt to reorganize or preserve value for creditors and instead was … Continue Reading

Determining the Cramdown Interest Rate: The Burden is on the Creditor

Posted in US

177437418Following Judge Drain’s decision in Momentive, many in the bankruptcy world have written about and discussed the issue of how to determine the appropriate interest rate that should be paid to secured creditors in the context of a Chapter 11 cramdown (the so-called “cramdown interest rate”). While many questions have been asked and remain unanswered, two recent decisions have confirmed that regardless of the approach used to determine the cramdown interest rate, the burden is on the creditor to provide evidence that the debtor’s proposed cramdown interest rate is too low.… Continue Reading

Bubble Bursts on Former Dot-Com Millionaire Debtors Seeking to Subordinate Claim of Ex-Partner

Posted in US

184064999Bankruptcy Code section 510(b) provides for mandatory subordination of any claims “arising from,” among other things, the purchase or sale of a security. It is an expansive provision that courts have interpreted broadly, causing some commentators to wonder: “Are there any limits to mandatory subordination under section 510(b)?”

In a decision entered last week in Khan v. Barton (In re Khan), No. 14-1021, 2014 WL 6972785 (B.A.P. 9th Cir. Dec. 9, 2014), the Bankruptcy Appellate Panel of the Ninth Circuit analyzed the objectives and policy considerations underlying mandatory subordination as well as the legislative history of section 510(b), and … Continue Reading

Second Circuit Applies Safe Harbor to Protect Withdrawals Made by Madoff Customers

Posted in US

pictureFocusing on the plain language provided in Bankruptcy Code section 546(e), the Court of Appeals for the Second Circuit this week held that customers of the now defunct Bernard Madoff Investment Securities LLC can retain funds they had withdrawn from their customer accounts before the Madoff firm was placed into liquidation.  Irving Picard, the trustee appointed under the Securities Investor Protection Act of 1970 (SIPA) to liquidate the Madoff investment firm, had sought to “avoid” or unwind customers’ withdrawals of funds that exceeded the amounts that the customers had deposited with the investment firm–their “profits”. Avoiding these transfers would have … Continue Reading

Lightsway Litigation Services, LLC v. Yung: A Further Study of Fiduciary Duties

Posted in US

200325572-001Following up last week’s post on fiduciary duties, we review another bankruptcy decision, also in Delaware, that provides a good refresher on the fiduciary duties of directors and officers. In dismissing claims that officers and directors had breached fiduciary duties, the bankruptcy court in Lightsway Litigation Services, LLC v. Yung (In re Tropicana Entertainment, LLC) reminds creditors when they are entitled to assert breach of fiduciary duty claims and what they must demonstrate in connection with those claims.

Continue Reading

Gavin v. Tousignant: A Refresher on How Bankruptcy Courts Interpret Officers’ and Directors’ Duties

Posted in US

126408545Corporate officers and directors who want to understand when a bankruptcy court may second-guess their decisions if their company fails need look no further than the Delaware bankruptcy court’s recent decision in Gavin v. Tousignant (In re Ultimate Escapes Holdings, LLC).

Failed Business, Failed Merger

Ultimate Escapes was formed in September 2009 to operate a “luxury destination club” that would provide its “members” with access to high-end vacation residences. Profits came from charging initiation fees, annual dues, and for al la carte services. By 2010, the company had approximately 1250 members.… Continue Reading

Provisional Liquidators’ Proper Planning Enabled Chapter 15 Recognition

Posted in US

MoneyJar_101338570At times, United States courts have been reluctant to grant recognition to foreign proceedings involving offshore “exempted” companies under Chapter 15 of the Bankruptcy Code. For example, the United States Bankruptcy Court for the Southern District of New York denied a request for recognition of the Cayman Islands liquidation of certain Bear Stearns funds. Following the Second Circuit’s decision in In re Fairfield Sentry Ltd., 714 F.3d 127 (2d Cir. 2013), the New York bankruptcy court has granted recognition to foreign proceedings involving offshore exempted companies. Most recently, the United States Bankruptcy Court for the Southern District of New … Continue Reading

Recharacterization: When Your “Loan” Becomes a “Capital Contribution”

Posted in US

PromNote_45352469Insiders who support their business enterprises in the form of loans should take comfort in a recent decision by the Bankruptcy Court for the Western District of Virginia in which the bankruptcy court declined to recharacterize a member’s loans to a limited liability company as capital contributions. Financial transactions in which an insider advances money to its business are likely to be highly scrutinized by a court in a bankruptcy case and, in certain instances recharacterized as equity notwithstanding having been labeled as a loan. However, as this case demonstrates, not all transactions involving an insider warrant recharacterization.… Continue Reading

Stop in the Name of Equity: Second Circuit Affirms Dismissal of Appeals in Chapter 11 Liquidation Proceedings as Equitably Moot

Posted in US

MissionComplete_464402679In a case of first impression, the Second Circuit recently held that the doctrine of equitable mootness is applicable in appeals arising from Chapter 11 liquidations and affirmed the decision of the Southern District of New York to dismiss the appeals of three decisions in the Chapter 11 liquidation proceedings of the former book retailer Borders.

A Primer on Equitable Mootness

The equitable mootness doctrine allows a district court to dismiss a bankruptcy appeal when the district court determines that although relief could be provided, implementation of the relief would be inequitable. In the Second Circuit, the appeal of a … Continue Reading