Law.com Subscribers SAVE 30%

Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.

BankruptcyFeaturesLitigationLJN NewslettersThe Bankruptcy Strategist

Bankruptcy Litigation Update: Determining Adequate Capital

By David M. Hillman and Parker J. Milender

Transactions involving distressed companies, or healthy companies that become distressed, are often attacked as fraudulent transfers. These transactions include leveraged buy-outs, dividend recaps, spin-offs, substantial asset sales and other garden-variety transfers. To determine whether a transfer (or obligation) can be avoided as fraudulent, courts generally examine the effect of the transfer on the transferor's assets —€ i.e., whether the transfer infringes on creditors' rights to realize upon available assets of the transferor. The focus is from the creditor's perspective as to what the transferor surrendered (or obligation it incurred) and what the transferor received.

A transfer (or obligation) can be challenged as an actual fraudulent transfer, which requires evidence that the transferor intended to “hinder, delay or defraud” its creditors. Alternatively, a plaintiff can challenge the transfer (or obligation) as a constructive fraudulent transfer, which requires evidence that: 1) the debtor made a transfer or incurred an obligation in exchange for less than reasonably equivalent value; and 2) was either: (a) insolvent on the date of the transfer or became insolvent thereby; (b) “engaged in business or a transaction, or was about to engage in a business or transaction, for which any property remaining with the debtor was an unreasonably small capital;” or (c) “intended to incur, or believed that it would incur, debts that would be beyond the transferee's ability to pay as they matured.” See 11 U.S.C. § 548(a)(1)(B).

This premium content is locked for Entertainment Law & Finance subscribers only

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts

For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473

Read These Next
The Article 8 Opt In Image

The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.

Beach Boys Songs Written Decades Ago Triggered Current Quarrel With Lawyers Image

There's current litigation in the ongoing Beach Boys litigation saga. A lawsuit filed in 2019 against Nevada residents Mike Love and his wife Jacquelyne in the U.S. District Court for the District of Nevada that alleges inaccurate payment by the Loves under the retainer agreement and seeks $84.5 million in damages.

Major Differences In UK, U.S. Copyright Laws Image

This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.

Strategy vs. Tactics: Two Sides of a Difficult Coin Image

With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.

Transfer Tax Implications on Real Property Leases Image

The real property transfer tax does not apply to all leases, and understanding the tax rules of the applicable jurisdiction can allow parties to plan ahead to avoid unnecessary tax liability.