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It has been said by many, in many different ways and in many different settings, that “desperate times call for desperate measures.” Practically since its enactment more than 40 years ago, that idiom has been the foundation of various business and legal strategies employed by those clinging to the Bankruptcy Code while pressing an argument in court for some form of relief. Indeed, the Bankruptcy Code is, by all accounts, a safe harbor for businesses and people in search of a “fresh start,” a venue to liquidate in an orderly fashion or just the opportunity to demonstrate that it is worth saving through a balance sheet and/or operational restructuring. Current times are desperate indeed, as the impact of the pandemic rages on and, in its path leaves many businesses and industries demolished or, at best, severely impaired. Once again, the Bankruptcy Code has been called upon to provide relief to those in dire need, relief that could certainly be called extraordinary in many respects.
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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.