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A bankruptcy judge, his law clerk and two law students challenged this author’s opinion piece entitled “Inconvenient Bankruptcy Appeals” from the December 2024 issue of The Bankruptcy Strategist that district courts and Bankruptcy Appellate Panels have been rigidly limiting appellate review of interlocutory bankruptcy court orders as a matter of convenience. The critics argue instead that these courts consistently apply appropriate statutory and decisional standards when they decline appellate review, striving to “get it right.” A quick reply follows.
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Over the past several years, the merchant cash advance (MCA) industry has grown substantially, fueled by small and middle market businesses needing quick financing once COVID-relief programs ended, with creative and aggressive lenders waiting to meet those needs. Before considering legal options for businesses that have secured MCAs, it is important to understand what an MCA is and why it poses a risk.
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Much ink has been spilled about the continued ascent of the “liability management exercise” (LME). Not to fret, this is not another LME article; rather, this article focuses on potential consequences of certain LME strategies.
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Demand in the bankruptcy portion of the restructuring practice has been a little sluggish this year as commercial Chapter 11 filings declined 15% compared to the same period in 2024, according to a new report from the American Bankruptcy Institute and Epiq.
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How can a court order be served to an anonymous individual during litigation? And if that individual is holding misappropriated cryptocurrency in a self-custodied, anonymous wallet, can those funds be seized and recovered? These questions are becoming more common in digital assets disputes, bankruptcies and litigations.
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Large amounts of data including personally identifiable information can be compromised in the event that debtors file for bankruptcy, and sell the information to pay back creditors.
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In the case of In re Promise Healthcare Group, the Third Circuit, addressing an unresolved question within the circuit, recently held that a claim’s enforceability is evaluated as of the petition date, not at the time an objection to the claim is filed.
Features
Liability management exercises (LMEs) have gained considerable attention during the past few years. Whether intended for good purposes or not, LMEs have significantly disrupted the traditional loan business through aggressive priming and subordination tactics — leading some to characterize this phenomenon as lender-on-lender violence.
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Bankruptcy cases almost always involve a substantial loss of value. When that happens, disputes arise and claims are asserted among stakeholders. This case is a reminder that when assessing the viability of such claims, if a limited liability company has been utilized for the business, strict attention must be paid to the terms of the agreement, starting with an analysis of whether all fiduciary duties have been waived.
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The Circuit split caused by MTE can and should be fixed by the Fifth and Seventh Circuits when the appropriate appeal reaches them. MTE reflects the more current analysis. It is unlikely that the Supreme Court will be able to resolve the split any time soon.