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The Bankruptcy Strategist

July 2025
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Third Circuit: A Claim’s Enforceability Is Evaluated As of the Petition Date, Not When Objection Filed Image

Third Circuit: A Claim’s Enforceability Is Evaluated As of the Petition Date, Not When Objection Filed

Lawrence J. Kotler & Geoffrey A. Heaton

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: Read the Fine Print Image

Liability Management Exercises: Read the Fine Print

Robert W. Dremluk

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.

Features

In LLC Stakeholder Claim Disputes, Pay Strict Attention to Agreement Terms and Possible Waivers Image

In LLC Stakeholder Claim Disputes, Pay Strict Attention to Agreement Terms and Possible Waivers

Andrew C. Kassner

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.

Features

Third Circuit Sides With Magistrates On Bankruptcy Appeals Image

Third Circuit Sides With Magistrates On Bankruptcy Appeals

Michael L. Cook

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.

Features

The Divestiture Rule Explained: A Judge-Made Doctrine Doesn’t Necessarily Deprive a Lower Court of Ongoing Subject Matter Jurisdiction Image

The Divestiture Rule Explained: A Judge-Made Doctrine Doesn’t Necessarily Deprive a Lower Court of Ongoing Subject Matter Jurisdiction

Daniel A. Lowenthal

The “divestiture rule is not truly jurisdictional,” a Florida Bankruptcy court held in the recent ECI Pharmaceuticals case, which shows how one court analyzed when or when not to apply the divestiture rule.

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