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  • AE Liquidation: WARN Act Comfort for Debtors Attempting a 363 Sale, or Just the 'Putin Exception'?

    October 02, 2017 |

    In In re AE Liquidation, the Third Circuit held that a WARN Act notice only must be given when mass layoffs are probable, not when merely foreseeable. As a result, a debtor that was attempting to effectuate a going concern sale under Bankruptcy Code Section 363 was not liable for failing to give a WARN Act notice until the day it determined it could no longer wait for approvals from the buyer to close.

  • Ninth Circuit Reignites Debate over the Interplay of Sections 363, 365

    October 02, 2017 |

    Bankruptcy Code sections 363 and 365 provide different rights for different parties, and they usually operate independently of one another. However, in situations where the two sections overlap, a number of courts have held they are in conflict, because a party invoking one of the provisions will seek to override the interest of a party invoking the other.

  • Third Circuit Defines 'Received' for Section 503(B)(9) Claims

    October 02, 2017 |

    In Haining Wansheng Sofa Co., Ltd. v. World Imports, Ltd. (In re World Imports, Ltd.), the Third Circuit firmly declared that "received" in Section 503(b)(9) connotes actual physical custody of the goods by the debtor. This turnabout in the interpretation of the meaning of "received" is a significant development, given that such claims frequently arise in business bankruptcies.

  • On the Move

    October 02, 2017 |

    Kobre & Kim LLP announced that Daniel Saval has joined the firm's cross-border insolvency litigation practice as a partner in the New York office.…

  • Substantive Non-Consolidation Opinion Letters

    September 02, 2017 |

    Considerations for Bankruptcy Counsel

    Substantive non-consolidation opinion letters have long been a regular “check-the-box” item in large commercial real estate transactions. While substantive consolidation jurisprudence has not changed materially over the past decade, these opinion letters should not be treated lightly by borrowers or their counsel.

  • The Interminable 'Insured vs. Insured' Battle

    September 02, 2017 |

    A New Obstacle to D&O Recoveries for Creditors

    No matter how meritorious a claim may be, its ultimate value to creditors depends upon one thing — whether there is a viable source to satisfy any judgment obtained, since many D&Os do not have sufficient personal assets to satisfy any significant damages that may be awarded.

  • Third Circuit Denies Automatic Perfection of Oil Producer Liens

    September 02, 2017 |

    In a recently decided, but long-running dispute, the Third Circuit has found that oil producers do not hold automatically perfected security interests in product they sell to midstream intermediaries, nor are the proceeds generated through the subsequent sale of such product held in an implied trust for the benefit of the upstream producers.

  • Lyondell Chemical: A Long and Winding Roadmap for Creditors in Leveraged Transaction Cases

    August 02, 2017 |

    In July 2009, the LyondellBasell Litigation Trustee commenced litigation arising out of the merger of Lyondell and Basell, seeking the recovery of billions of dollars for the benefit of unsecured creditors. And, as Bankruptcy Judge Martin Glenn observed, the Trustee "threw the kitchen sink" at the defendants. Eight years of litigation and two bankruptcy judges later, we have a decision.

  • Bankruptcy Litigation Update: Determining Adequate Capital

    August 02, 2017 |

    This article focuses on the concept of "unreasonably small capital," which is not defined in the Bankruptcy Code or applicable state statutes. Consequently, the determination of adequate capital is fact-intensive and fertile grounds for litigation.

  • On the Move

    August 02, 2017 |

    Who's doing what; who's going where.