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One of the rare legal issues in which bankruptcy practitioners usually are able to speak to clients in absolute terms to provide clear legal advice is the limitations period concerning the pursuit of avoidable transfers in bankruptcy proceedings. Section 546 of the Bankruptcy Code is clear that a trustee has two years after the order for relief to bring an avoidable transfer action. Section 548 of the Bankruptcy Code equally is clear that the trustee may pursue avoidable transfers that occurred within two years prior to the filing of a bankruptcy petition. And Section 544(b) of the Bankruptcy Code provides the trustee with “strong-arm” powers to avoid a transfer that is voidable “under applicable law” by a creditor holding an unsecured claim. This means that the trustee may look to non-bankruptcy law (usually state law) and deploy any avoiding power that the trustee finds there. The most common use of Section 544(b) is to give the trustee a right of action under state fraudulent transfer law. These are most often useful to the trustee because of the longer reach-back period available under state law, which generally range from three to six years prior to the petition date.
By Richard J. Mason
This article looks at some of the issues that may arise if a cryptocurrency exchange becomes a debtor in a case under the Bankruptcy Code.
By John J. Rapisardi and Daniel Shamah
PG&E Corporation and its subsidiary, Pacific Gas & Electric Company announced that it expects to file for Chapter 11 bankruptcy protection on or around Jan. 29, 2019, right around the conclusion of a mandatory 15-day notice requirement under California law. Such a filing would represent the second time PG&E resorted to protection under the U.S. Bankruptcy Code.
By H. Peter Haveles, Jr. and Eric Winston
The bankruptcy court’s ruling is a seminal decision that meaningfully circumscribes the ability of a secured noteholder under an indenture, particularly for structured debt, to force the debtor (i.e., issuer of the debt) into an involuntary bankruptcy.
By Timothy W. Hoffmann and Mark G. Douglas
In Nuverra Environmental Solutions,, the U.S. District Court for the District of Delaware affirmed a bankruptcy court order confirming a non-consensual Chapter 11 plan that included “gifted” consideration from a senior secured creditor to fund unequal distributions to two separate classes of unsecured creditors.