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The retention of an expert is obviously common and essential in many litigation scenarios. However, simply because the expert is retained by counsel in anticipation of litigation, does not automatically render all communications privileged. This is generally true whether the litigation is pending in a bankruptcy or nonbankruptcy proceeding. Therefore, the terms of an expert’s retention, as well any decision as to what information is disclosed must be carefully considered in advance. A recent decision by the Bankruptcy Court for the Northern District of Texas, Northwest Senior Housing v. Intercity Investment Properties (In re Northwest Senior Housing), 2023 Bankr. LEXIS 1001 (Bankr. N.D. Tex. 2023), addressed these important issues involving the retention of a public relations firm and highlights some important pitfalls to avoid.
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Bankruptcy Risk and Fraud In Cryptocurrency
By J. Eric Wise
Among the risks of cryptocurrency exchanges are bankruptcy risk and fraud, including: the inalienability of account claims, holding an unsecured claim versus an entitlement to the return of coin, and bankruptcy preference risk.
Bankruptcy Court Says Bankruptcy Case Is ‘Filed’ When Uploaded, Not Stamped
By Lawrence J. Kotler and Drew S. McGehrin
The U.S. Bankruptcy Court for the Southern District of New York summed up the importance of the determination as to when a bankruptcy case is actually filed of record, thereby triggering the imposition of the automatic stay and found that the “upload” time of a bankruptcy filing — and not the time physically “stamped” on a bankruptcy petition — determines when a case is commenced. In doing so, the Bankruptcy Court offered direction and guidelines that debtors and creditors will be well advised to observe in future cases.
Fourth Circuit Ruling Underscores Judicial Divide On Use of ‘Texas Two-Step’
By Avalon Zoppo
A sharply divided U.S. Court of Appeals for the Fourth Circuit ruling shielding a nondebtor in bankruptcy proceedings from asbestos lawsuits underscores the wider and growing divide among judges across the country on the bounds of Chapter 11 protection and corporations’ use of the “Texas two-step” to address mass tort litigation.
By Francis J. Lawall and Brenden S. Dahrouge
Chapter 11 cases involving mass tort and complex personal injury claims often require the resolution of novel legal issues that stretch the bounds of existing precedent. As these cases evolve, they can also impact claims against other debtors unrelated to the case at hand through court-approved injunctions, releases or settlements.
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