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Foreign Representatives in Chapter 15 petitions are specifically permitted to conduct discovery to locate the debtor’s assets within the United States to increase estate and creditor recoveries in the overseas proceedings and to probe the debtor’s affairs, rights, obligations or liabilities. In the U.S. ancillary proceeding, the Foreign Representative will encounter resistance and other entities may seek to propound subpoenas under Fed. R. Bankr. 2004. Sometimes, these entities are creditors who seek information relevant to their claim or assets available to pay the same. Other times, these entities are subpoena targets who seek to gain a peek into the Foreign Representative’s search, seek to distract and/or delay the Foreign Representative from the asset search, or who seek to “punish” the Foreign Representative. The Foreign Representative may be able to avoid responding to such requests by moving for protective order or to quash the subpoena based upon 11 U.S.C. 1521(a)(4) and/or Rule 2004(a). The arguments are based upon: 1) the language of 1521(a)(4) and two canons of statutory construction, or, alternatively; 2) interpretive case law under Rule 2004 as to the requirements to show a “pecuniary interest” in a case.
By Michael L. Cook
Judicial hair-splitting, when applying state law to federal bankruptcy cases, creates only uncertainty.
By Francis J. Lawall and Marcy J. McLaughlin Smith
The common interest doctrine can be a powerful tool when used to block discovery of relevant and sometimes critical evidence. However, a determination of when it can be invoked requires a highly fact-intensive analysis.
By Earl M. Forte
Chapter 11 work can be episodic and uneven, and while litigation skills are essential, it is also quite specialized. So, given these qualities, how does a bankruptcy litigator go about moving from one law firm to another, and what are the pitfalls?
By Gerard S. Catalanello and Kimberly J. Kodis
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