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The U.S. District Court for the Northern District of California recently issued two blistering opinions on appeals by the Internal Revenue Service (IRS) California Franchise Tax Board (FTB) (collectively, Tax Agencies) from a bankruptcy court’s Chapter 11 plan confirmation order and a tax determination order. In the first decision, the court held the appeals were neither constitutionally nor equitably moot. In re Levandowski, 2023 WL 2503305 (N.D. Cal. Mar. 14, 2023), (Levandowski I). In the second opinion, the court reversed and remanded the bankruptcy court’s order erroneously determining the debtor’s tax liability (Tax Order) and the bankruptcy court’s separate confirmation order on feasibility grounds “due to legal error [in] the Tax Order.” In re Levandowski, 2023 WL 2495763 (N.D. Cal. Mar. 14, 2023) (Levandowski II). The court also remanded to the bankruptcy court for a reconsideration of its “setoff rights” finding in the confirmation order’s discharge provision.
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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.
Corporate Bankruptcies and the Restructuring Solution
By Brian Wanat
Recent, big-name Chapter 11 filings have brought to the light the importance of insurance solutions for companies in financial distress, as companies in this situation face oftentimes new and uncharted issues.
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