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Recharacterizing Debt

By Paul Rubin and John M. August

Part Two of a Two-Part Article

The first half of this article, which appeared in last month's issue, discussed the purpose and effect of recharacterization of debt to equity, distinguished recharacterziation from equitable subordination, and reviewed various approaches, including multi-factor tests, that different courts have employed in determining whether to recharacterize a claim in bankruptcy and non-bankruptcy contexts. This concluding installment explores further the Third Circuit Court of Appeals' decision in In re SubMicron Systems Corporation, et al., 432 F.3d 448 (3d Cir. 2006) and discusses lessons learned from that case.

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