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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 Michael L. Cook
A license agreement “deemed rejected by operation of law” could not be acquired under a court-approved asset purchase agreement, held the U.S. Court of Appeals for the Fifth Circuit
By Deirdre M. Richards and Howard C. Rubin
Secured creditors can learn a great deal from a few recent bankruptcy cases involving the Uniform Commercial Code that remind us that the “devil is in the details.” These cases show that it is unrealistic to expect forgiveness by a court after a misstep involving Article 9 of the UCC.
By Barry A. Chatz and Kevin H. Morse
On Oct. 3, 2018, the Chapter 11 Liquidating Plan of Eclipse Berry Farms, LLC was confirmed, concluding a two-year journey from one of the largest strawberry growers in the country to the cessation of operations and eventual liquidation.
By Mark S. Melickian and Jack O’Connor
The battle over retaining a chief restructuring officer, which the United States Trustee has traditionally not objected to, is heating up.