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The Bankruptcy Strategist
What a Post-COVID-19 World: Debtors’ Extraordinary Responses to COVID-19
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
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The Bankruptcy Strategist
ABCs As an Alternative to Bankruptcy for Implementing Distressed Transactions
David S. Kupetz
Companies suffering financial distress frequently reach a crossroads where they need to either implement some type of transaction or will be forced to liquidate. In developing a plan for moving forward, management should evaluate and determine, with appropriate input from outside experts, feasible alternatives.
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The Bankruptcy Strategist
Consumer Bankruptcies In 2021 Can Benefit Both Client and Practitioner
Joshua Denbeaux, Lee M. Perlman and Heidi Spivak
As in past times of economic turmoil, it is anticipated that there will be a surge in residential foreclosures, debt collection activity, and the resultant wave of consumer bankruptcy filings.
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The Bankruptcy Strategist
Perfecting Notice and Saving $$
Tinamarie Feil
The number one goal to save money while perfecting notice should be elimination of the production and mailing of paper notices while expediting notice delivery and eliminating postage costs.
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The Bankruptcy Strategist
U.S. Supreme Court Allows Repossessing Secured Lender to Hold Collateral Pending Bankruptcy Stay
Michael L. Cook
A secured lender’s “mere retention of property [after a pre-bankruptcy–repossession] does not violate” the automatic stay provision of the Bankruptcy Code, held a unanimous U.S. Supreme Court in City of Chicago v. Fulton.
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The Bankruptcy Strategist
Shielding Retainer Fees Prior to Client’s Bankruptcy
Milton Williams and Christopher Dioguardi
Which type of retainer agreement gives attorneys the best chance to preemptively shield their retainer fees before a client ends up in bankruptcy or the Department of Justice seizes and forfeits the client’s assets?
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The Bankruptcy Strategist
Privacy Issues In Bankruptcy Proceedings
Stephanie Skaff, Sushila Chanana and Ashleigh Nickerson
Due to the COVID-19 pandemic, some businesses are considering potential liquidation or restructuring through bankruptcy. Companies in this situation should keep privacy concerns in mind, because the handling of personal data in bankruptcy proceedings poses some unique challenges.
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The Bankruptcy Strategist
Pandemic Forces Small Restaurants to Make Tough Bankruptcy Choices
Andrew C. Kassner and Joseph N. Argentina Jr.
Perhaps no sector has been more challenged from the COVID-19 pandemic than the restaurant industry. And, as is often the case, these difficult situations and the resulting tough choices must be addressed in the bankruptcy system.
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The Bankruptcy Strategist
Important Amendments to the Bankruptcy Code In the Consolidated Appropriations Act
Richard F. Broude
A preview of an update to the book Reorganizations Under Chapter 11 of the Bankruptcy Code that covers The Consolidated Appropriations Act that was enacted in December.
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The Bankruptcy Strategist
The Small Business Reorganization Act: How It Started. How it’s Going. Where to Next?
Jack O’Connor
By further expanding access to a streamlined Chapter 11 process, the SBRA will ensure that a wider array of debtors have the ability of reorganizing themselves, when Chapter 11 was previously too cost-prohibitive for such debtors.
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The Bankruptcy Strategist
State High Court Preserves Lenders’ Tort Claims Against Debtors’ Insiders
Michael L. Cook
A lender’s state law tort claims against “non-debtor third-parties for tortious interference with a contract” were “not preempted” by “federal bankruptcy law,” held the New York Court of Appeals.
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The Bankruptcy Strategist
Implications of Transfer of Attorney-Client Privilege In Bankruptcy Cases
Andrew C. Kassner and Joseph N. Argentina Jr.
One of the most misunderstood areas of law for non-bankruptcy and bankruptcy attorneys alike is the attorney-client privilege, including the scope of the privilege, who holds it, and when and by whom it can be waived. As is often the case, in bankruptcy, additional complexities arise.
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The Bankruptcy Strategist
Bankruptcy Court Responses to COVID-19 Relief Orders
Richard Levy Jr.
The economic impact of COVID-19-related shutdown orders, and the governmental directives, raise questions of how bankruptcy courts will respond.
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The Bankruptcy Strategist
Turn that Frown Upside Down
Jonathan Friedland and Hajar Jouglaf
Using Subchapter V’s Unlimited Debt Limit & Confirmation Requirements to Eradicate Personal Guarantees
Limitations to Subchapter V suggest that it will be of no use to all but very small companies, but before turning completely away from the topic, there are other considerations in play.
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The Bankruptcy Strategist
Transportation Services Agreements At Risk in Chapter 11 Proceedings
Francis J. Lawall and Patrick M. Ryan
In 2020, we’ve become all too familiar with the struggles of the gas and oil producers upon which many of our most popular industries rely. The resultant surge in restructuring activities, including Chapter 11 proceedings, among gas and oil producers is the highest in years.
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The Bankruptcy Strategist
Tenth Circuit Ruling May Impact Treatment of Student Loans In Bankruptcy
Charles M. Tatelbaum, Christina V. Paradowski and Brittany L. Hynes
A recent ruling in the U. S. Court of Appeals for the Tenth Circuit represents a significant departure from the generalized belief that student loan debts cannot be discharged in bankruptcy, and which, if followed by other circuit courts, could have a dramatic impact on bankruptcy law.
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The Bankruptcy Strategist
Bankruptcy Courts Embracing Virtual ADR
Jeffrey T. Zaino
Bankruptcy courts are embracing virtual alternative dispute resolution (ADR) processes to handle cases during this extraordinary period. Engaging in online mediation, and arbitration, can expedite Chapter 11 cases toward an equitable conclusion for the parties involved, while ensuring everyone can practice safe social-distancing.
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The Bankruptcy Strategist
Time Is Running Out On Restructuring Under New Subchapter V
Jerrold L. Bregman
The clock is ticking for small businesses to take advantage of a new way to restructure under Chapter 11 of the Bankruptcy Code. New Subchapter V — part of the CARES Act — is set to expire early next year.
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The Bankruptcy Strategist
Treatment of Straddle Year Federal Taxes in Bankruptcy Cases
Andrew C. Kassner and Joseph N. Argentina Jr.
When does a tax liability claim arise in a bankruptcy case? The issue was recently addressed by the U.S. District Court for the District of Delaware which ruled that federal income taxes for the year in which a debtor files for bankruptcy are entitled to priority treatment as administrative expenses when the end of the taxable year occurred after the bankruptcy petition date.
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The Bankruptcy Strategist
Nondischargeability Judgment Requires Willful and Malicious Injury Under Section 523(a)(6)
Rudolph J. Di Massa Jr. and Keri L. Costello
In re Smith
The Bankruptcy Appellate Panel for the Tenth Circuit recently joined the majority of circuit courts of appeals in finding that a creditor seeking a judgment of nondischargeability must demonstrate that the injury caused by the prepetition debtor was both willful and malicious under Section 523(a)(6) of the Bankruptcy Code.
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The Bankruptcy Strategist
Cash Flows for Bankruptcies During COVID-19
Jonathan Koevary and Robert Gagne
Chapter 11 petition strategy will almost invariably require and depend upon cash flow for continued use of leased stores and restaurants. To say the least, for those companies that filed for bankruptcy on the eve of the COVID-19 shutdowns, the strategies — and available cash flows to pay landlords — did not go as planned.
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The Bankruptcy Strategist
COVID Shutdown Orders v. Statutory Rent Obligations
Brett S. Theisen and Mark B. Conlan
Even though payment of post-petition rent under a nonresidential lease (prior to rejection) has historically been an absolute requirement, bankruptcy courts, as courts of equity, have the ability during these extraordinary times to take a more flexible approach.
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The Bankruptcy Strategist
What’s In Store for Bankruptcy Reform In a Biden Presidency
Mette H. Kurth and Dan Mette
Senator Elizabeth Warren has been relentlessly pursuing bankruptcy reform for two decades. And Joe Biden has adopted her comprehensive proposal. The proposals could impact commercial bankruptcy law and reverberate across our financial systems.
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The Bankruptcy Strategist
Unforeseen Consequences for Bankruptcy Practice In CARES Act
Sourav Chaudhuri and Gregory Plotko
This article highlights several of these outcomes and discrepancies of the CARES Act stimulus package, including how accepting crisis funding could lead to a company becoming more distressed, how bankruptcy courts are inconsistently ruling on the ability for Chapter 11 debtors to receive PPP loans and how changes to the Bankruptcy Code altered the rights of equity holders and debtholders.
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The Bankruptcy Strategist
Bankruptcy and Intellectual Property Executory Contracts
Michael H. Strub Jr.
The economic impact of the pandemic has been catastrophic. For many companies, intellectual property are significant assets, and counsel for these businesses, as well as counsel for their creditors, licensees and licensors, will need to understand these issues that arise to avoid pitfalls and take full advantage of opportunities to exploit the full value of a company’s IP for the benefit of their clients.
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The Bankruptcy Strategist
COVID-19 Related Governmental Shut Down Order Triggers Force Majeure Provision In Restaurant Leases
Marisa L. Byram
While commercial leases and the force majeure clauses contained in such leases vary widely, a recent decision from the United States Bankruptcy Court for the Northern District of Illinois may provide guidance to parties and help them to resolve similar disputes without resorting to the courts.
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The Bankruptcy Strategist
Do COVID-19 Rent and Eviction Protections Just Delay Inevitable Bankruptcy?
Dana Delman and John Vukmanovic
In attempts to alleviate the impact of job losses and business disruption due to COVID-19, state and local governments have passed emergency orders and regulations temporarily prohibiting evictions and extending deadlines to pay rent, among other restrictions. When those restrictions are lifted, there is no guarantee that they will have done more than delay the inevitable: eviction and bankruptcy.
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The Bankruptcy Strategist
Bankruptcy Code Section 502(d) Claim Disallowance Issues ‘Travel With’ the Claim
Rudolph J. Di Massa, Jr. and Geoffrey A. Heaton
In a recent decision, the U.S. Bankruptcy Court for the Southern District of New York held that claim disallowance issues under Section 502(d) of the Bankruptcy Code “travel with” the claim, and not with the claimant.
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The Bankruptcy Strategist
10th Circuit Looks At Nuances of Challenging Fraudulent Conveyance
Francis J. Lawall and Marcy J. McLaughlin Smith
Under the Bankruptcy Code, not only can the initial recipient of a fraudulent conveyance be held liable, but so too can a subsequent transferee. However, there can be important nuances in the challenged transaction that may provide a subsequent transferee with a substantial defense.
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The Bankruptcy Strategist
Bankruptcy ‘Plunderers’ Can Be Sued by Creditors, Third Circuit Rules
P.J. D’Annunzio
The U.S. Court of Appeals for the Third Circuit has ruled in a precedential decision that in cases where a trustee has abandoned a bankrupt entity, a creditor can nevertheless sue those who “plunder” a near-insolvent company of its remaining assets.
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The Bankruptcy Strategist
Bankruptcy Sales: Finding a Diamond In the Rough
Matthew I. Kramer
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
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The Bankruptcy Strategist
J.Crew Allowed to Shutter Under Terms of Mall Lease
Danielle C. Lesser
Malls across America, long suffering even before the rise of COVID-19, are now forced to confront a wave of store closures that will inevitably result from current factors. Troubled retailers will, without doubt, seek to close their failing mall locations. To stem these efforts, landlords have applied to courts for injunctive relief to force stores to remain open and operating through the enforcement of the “continuous operations provision” found in mall leases.
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Commercial Leasing Law & Strategy
Will Pandemic Lead to More SARE Filings?
Lidia Dinkova
Single-asset real estate bankruptcies (SAREs) are streamlined reorganizations for debt taken out by borrowers on just one property, giving them a three-month window to propose a restructuring plan.
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The Bankruptcy Strategist
The Bankruptcy Code’s Anti-Discrimination Section and COVID-19
Andrew C. Kassner and Joseph N. Argentina Jr.
The pandemic has spurred analysis of legal issues as businesses grapple with their respective relationships with both private and public entities. In this article, the authors examine Section 525 of the Bankruptcy Code — the anti-discrimination section, and its implications during COVID-19.
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The Bankruptcy Strategist
The ABCs of Assignments for the Benefit of Creditors (ABCs)
Mark S. Melickian and Hajar Jouglaf
General assignments for the benefit of creditors (ABCs) have been and continue to be a popular business liquidation device for the orderly wind down of corporations, limited liability companies, and even nonprofit corporations and general partnerships. Just as in bankruptcy, an ABC can also be used to facilitate a going-concern sale of the debtor’s assets to a third-party. Includes an interactive state-by-state map.
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The Bankruptcy Strategist
Small Business Reorganization Act and Subchapter V
Robert W. Dremluk
The general purpose of Subchapter V was to streamline the Chapter 11 bankruptcy process for small businesses and individuals engaged in business to administer their bankruptcy estate in an efficient and less costly manner.
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The Bankruptcy Strategist
Update on Corporate Bankruptcy Tax Refund Litigation
Michael L. Cook
The bankruptcy trustee of a bank holding company was not entitled to a consolidated corporate tax refund when a bank subsidiary had incurred losses generating the refund, Tenth Circuit held.
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The Bankruptcy Strategist
Estate Professionals Can Be Compensated for Services Performed Before Entry of a Retention Order, Even Without Nunc Pro Tunc Orders
Sheryl P. Giugliano
Bankruptcy professionals should be relieved by a recent decision holding that although nunc pro tunc orders approving a professional’s retention are now considered “inappropriate” in light of the Supreme Court’s decision in Roman Catholic Archdiocese of San Juan, there is nothing in the Bankruptcy Code, Bankruptcy Rules, or applicable case law preventing an award of compensation before a retention order is entered.
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The Bankruptcy Strategist
Corporate Resiliency: How to Ensure Financial Health Ahead of an Economic Downturn
Derek F. Meek and Hanna Lahr
Proper planning is key to ensuring a company’s financial health when facing an economic downturn. Although companies will come into such planning with different levels of financial health, the same considerations can be helpful in determining the best path forward.
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The Bankruptcy Strategist
The Shutdown of the Restaurant Industry: The Widespread Impact
Gerald D. Davis and Amy L. Drushal
Restaurants are already fragile businesses, not known for lucrative revenue, but instead known for surviving on tight margins. When the industry reopens to the “new normal,” what will the restaurant industry look like?
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The Bankruptcy Strategist
Advertising Section 363 Sales in the Digital Age
Mark S. Melickian and David M. Madden
this article provides an overview of the legal landscape governing §363 sales and the types of Internet-based resources available to potential asset sellers.
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The Bankruptcy Strategist
Open Questions Regarding Disallowance Under Section 502(d)
Paul A. Rubin and Hanh V. Huynh
The intra-district divide in the Southern District of New York continued to deepen on the issue of whether claims disallowance under section 502(d) of the Bankruptcy Code applies to the claim or to the claimant.
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Cybersecurity Law & Strategy
Legal Tech: As Bankruptcies Grow, E-Discovery Counsels’ Work May Become More Challenging
Victoria Hudgins
Businesses reeling after multiple international stay-at-home mandates are finding themselves out of options and filing for bankruptcy. The situation has led some law firms to cash in on bankruptcy service, and made many cautiously optimistic that the bankruptcy practice will be in high-demand during the current recession.
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The Bankruptcy Strategist
Preparing for State Bankruptcies
Samantha Stokes
It’s no secret that major law firm bankruptcy practices are ramping up for a historic rise in Chapter 11 filings as industries are battered by the COVID-19 pandemic. Controversial comments by Senate majority leader Mitch McConnell in April raised the possibility that restructuring lawyers could also gain a new clientele: state governments.
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The Bankruptcy Strategist
Bankruptcy Asset Sales During COVID-19 Crisis
Hugh McDonald and Deborah Kovsky-Apap
The COVID-19 pandemic is already leaving its mark on the bankruptcy asset sale landscape. Despite the uncertainty — or even because of it — bankruptcy should still be viewed as a useful tool to effectuate the acquisition of assets. The current situation and anticipated distress across many industries presents opportunities for purchasers to acquire assets on favorable terms.
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The Bankruptcy Strategist
COVID-19: A Massive Impediment to Bankruptcy Relief
Joseph H. Lemkin
With Uncertainty As to When the Pandemic Will Ease, Bankruptcy Courts Do Not Seem to Be a Panacea Leading to Successful Reorganizations or Orderly Liquidations for Troubled Companies
The impact of COVID-19 on efforts of businesses to reorganize or even orderly liquidate in bankruptcy has been swift and devastating
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The Bankruptcy Strategist
COVID-19: As Coronavirus Ravages the Economy, Bankruptcy Attorneys Prepare for the Flood
Samantha Stokes
Law firms have always counted on bankruptcy as a countercyclical practice in hard times. Now, those that prepared when the economy was booming may be about to get their reward.
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The Bankruptcy Strategist
Parent of Secured Creditor Does Not Automatically Gain Secured Status
Rudolph J. Di Massa Jr. and Drew S. McGehrin
The ruling in In re Jarvis that the grant of a security interest to a corporate lender will not necessarily “spread” that security interest to the lender’s affiliates underscores the need for precision and care in the drafting of loan documents, particularly with respect to the granting language contained in security agreements.
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Commercial Leasing Law & Strategy
Personal Guaranty of Commercial Lease Held Discharged in Guarantor’s Bankruptcy
Andrew C. Kassner and Joseph N. Argentina Jr.
As we prepare for the anticipated increase in bankruptcy filings caused by the COVID-19 pandemic's impact on the economy, many practitioners are trying to compare this to the savings and loan crisis of the late 1980s. One of the issues that keeps coming up cycle after cycle is whether a personal guaranty of a commercial lease is discharged in the bankruptcy of the individual guarantor. Court decisions have split on this issue for years.
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The Bankruptcy Strategist
Supreme Court Defers to State Law on Ownership of Tax Refund
Michael L. Cook
High Court Rejects Application of Bob Roberts Rule
Federal courts should “turn to state law to resolve” a “fight over a tax refund,” held a unanimous U.S. Supreme Court in Rodriquez v. FDIC (In re United W Bancorp., Inc.)
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