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Although four cases presenting important bankruptcy issues were teed up for the Supreme Court’s consideration this term, the Court denied certiorari for each. Each of these petitions involve splits among the circuit courts of appeals, influencing choice of venue and the extent to which bankruptcy decisions are subject to meaningful appeal.
The U.S. Supreme Court began its 2021-2022 term this Fall with a schedule that includes no bankruptcy matters. Although four cases presenting important bankruptcy issues were teed up for the Court’s consideration this term, the Court denied certiorari for each. These petitions involved open questions on states’ powers to assert sovereign immunity in the bankruptcy arena, the extent to which federal bankruptcy law preempts certain state-law causes of action, and the judicially created doctrine of equitable mootness. Each of these areas involve splits among the circuit courts of appeals, influencing choice of venue and the extent to which bankruptcy decisions are subject to meaningful appeal.
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Lease Terminations As Fraudulent Transfers
By Michael L. Cook
Is an insolvent debtor’s pre-bankruptcy termination of a commercial lease a fraudulent transfer? The circuit courts seem to be split, however a close reading of cases in the Third and Seventh Circuits shows that the reasoning of both courts can be reconciled on their facts.
The Role of Third-Party Releases In Successful Chapter 11 Reorganizations
By John J. Rapisardi and Jacob T. Beiswenger
Part Two of a Two-Part Article
In Part Two, we continue the analysis by evaluating two constitutional issues arising from third-party releases: whether creditor consent to be bound by a third-party release is required to satisfy the due process clause of the Fifth and Fourteenth Amendments; and whether bankruptcy courts have constitutional authority to issue final orders granting third-party releases in a plan of reorganization under Stern v. Marshall.
Fourth Circuit: Corporate Subchapter V Debtors Subject to Discharge Exceptions Under Bankruptcy Code
By Lawrence J. Kotler and Elisa Hyder
In a matter of first impression not yet addressed by any circuit court, the Fourth Circuit addressed whether the discharge exceptions under Section 523(a) apply to corporate debtors under Subchapter V of Chapter 11 of the Bankruptcy Code.
Appellate Court Reverses Chapter 11 Confirmation Order Based on Faulty Tax Ruling
By Michael L. Cook
The Northern District of California recently issued two blistering opinions on appeals by the IRS and California Franchise Tax Board from a bankruptcy court’s Chapter 11 plan confirmation order and a tax determination order.