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In U.S. Bank Nat’l Ass’n v. Village at Lakeridge, LLC, 200 L.Ed.2d 218 (U.S. 2018), the U.S. Supreme Court laid out the standard of review for appellate courts to apply when reviewing a bankruptcy court’s determination of a “mixed question” of law and fact. No doubt the decision provides valuable guidance for the lower courts and practitioners, but resolution of this technical procedural issue has garnered little excitement: as one commentator put it, the majority opinion authored by Justice Kagan represents “the smallest change in the law of any opinion the Supreme Court hand[ed] down this year.” Ronald Mann, Opinion Analysis: Justices Approve Deferential Review of Bankruptcy-Court Determinations on “Insider” Status, SCOTUSblog (Mar. 5, 2018, 4:34 PM).
By Jacob H. Marshall
How Lenders and Debtors can Minimize UST Fees and Maximize Creditor Recoveries
As predicted in the first part of this article (May, 2018), the new United States Trustee (UST) fee has had a disproportionate effect on middle-market, high-velocity cash flow companies. The best solution is for Congress to revisit the fee structure and refine it to reflect the realities of particular cases and the actual burden on the UST.
By Michael L. Cook
A defendant creditor in a preference suit may offset 1) the amount of later “new value” it sold to the Chapter 11 debtor against 2) the debtor’s earlier preferential payment to the creditor, the U.S. Court of Appeals for the Eleventh Circuit recently held.
By Daniel A. Lev
Part Two of a Two-Part Article
The ability of a debtor to reject a restrictive covenant under Section 365 or to sell free and clear of a covenant under Section 363(f) is limited and the obstacles are difficult to surmount. A possible solution, however, may surface if a debtor can demonstrate a change of circumstances under state law.
By Tom McParland
The U.S. Court of Appeals for the Third Circuit on Sept. 13 upheld a Delaware Bankruptcy Court’s decision to block a Florida-based energy company from collecting a $275 million merger termination fee against the bankruptcy estates of Energy Future Holdings Corp. and a subsidiary.