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The U.S. Court of Appeals for the Second Circuit, on remand from the Supreme Court, further remanded to the district court the key issue of whether the Chapter 11 debtor gave “adequate assurance of future performance of” a commercial real property shopping center lease “as required by [Bankruptcy Code] §365(b)(3)(A),” after the debtor’s assignment of its lease to Transform Holdco LLC (T). In re Sears Holding Corp., 2023 WL 7294833 (2d Cir. Nov. 6, 2023). MOAC Mall Holdings LLC (M), the shopping center lessor, had objected to the lease assignment because the assignee had not met the Code’s financial condition requirement; lost in the bankruptcy court; initially prevailed in the district court on appeal; but lost again in that court and in the Court of Appeals on jurisdictional grounds. The Supreme Court, however, rejected the Second Circuit’s jurisdictional holding and remanded for a review of the merits of M’s appeal. MOAC Holdings LLC v. Transform Holdco LLC, 143 S. Ct. 927, 933 (2023) (“ … §363(m) is not a jurisdictional provision.”).
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By Howard B. Epstein and Theodore A. Keyes
Many businesses have sought to recover their pandemic losses under commercial property insurance policies, only to be denied coverage. A significant number of policyholders have filed lawsuits challenging these disclaimers, primarily in state courts. But to the dismay of the insureds, a growing majority of high state courts have sided with the insurers in these disputes.
Navigating the Intersections of Commercial Real Estate and Eminent Domain Actions
By Ellen Smith and Elizabeth Story
For real estate attorneys, knowing how to navigate around eminent domain actions in the midst of various transactions and operations is critical to best position clients for the future condemnation conundrum.
A Prepackaged Bankruptcy Could Be the Answer to a Mortgage Default
By Timothy Little, Scott Vetri, Julie Lee and Peter Siddiqui
This article discusses the value of prepackaged bankruptcy as an alternative route for addressing commercial mortgage defaults in high tax jurisdictions.
NJ Supreme Court: Commercial Property Owners Have a Duty to Maintain Abutting Sidewalks
By Colleen Murphy
In a 4-3 decision on June 13, the New Jersey Supreme Court reversed an Appellate Division opinion in a slip-and-fall case, concluding that all commercial landowners have a duty to maintain public sidewalks and are liable to pedestrians who are injured as a result of their negligent failure to do so.