As explained in last month's article, there has been a great deal of confusion in the courts regarding Section 365(b)(2)(D).
Clearing the Confusion
As explained in last month's article, there has been a great deal of confusion in the courts regarding Section 365(b)(2)(D). In a detailed opinion on appeal, the Ninth Circuit diverged from two lower courts, holding that the most natural reading of subsection (b)(2)(d) requires a finding that the word "penalty" modifies both "rate" and "provision." This ruling, as discussed in last month's article, caused further confusion in the courts as to interpretation.
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