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The onset of the COVID-19 pandemic led to a significant uptick in bankruptcy filings, especially by debtors in the hard-hit retail and service sectors. The associated shut down orders issued by state and local agencies led to further retrenchments caused by the inability of consumers to patronize businesses in person, with ripple effects through the supply chain. The economic impact, and the governmental directives, raise questions of how bankruptcy courts will respond: Do governmental orders and/or the financial consequences of the pandemic support: 1) the suspension of contractual obligations under force majeure provisions in contracts between debtors and creditors; and 2) bankruptcy court orders suspending cases or proceedings, to provide debtors an opportunity to stabilize their affairs?
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By Eva D. Gadzheva, Jeremy M. Downs and David E. Morrison
This article reminds us of the conflict-of-laws analysis at the heart of such retention of title disputes, and then discuss the multi-step UCC analysis that is also required.
By Michael L. Cook
The Second Circuit applied federal bankruptcy law when holding that good faith is an affirmative defense.
By Thomas R. Califano and Anna Gumport
Members of Congress recently introduced the Nondebtor Release Prohibition Act, which proposes to amend the Bankruptcy Code to, among other things, restrict courts’ ability to approve third-party releases of nondebtors and related injunctions under plans of reorganization or otherwise in Chapter 11 cases.
By Steven B. Smith and Rachel Ginzburg
If you think public policy favoring the freedom to file a Chapter 11 trumps the freedom to negotiate specific restrictions to such a filing, think again.