The Metamorphosis of Assignment Clauses in Bankruptcy
May 24, 2005
Last month, we discussed "The Debtor's Nightmare," explaining how the Fourth Circuit joined the Ninth, Third and Eleventh Circuits in adopting the "hypothetical test" in denying a debtor in possession's assumption of an executory contract under section 365 (c) of the Bankruptcy Code despite an express assignability provision in the contract. <i>RCI Tech. v. Sunterra Corp.</i> (<i>In re Sunterra Corp</i>), 361 F.3d 257 (4th Cir. 2004). This month, we continue with "the debtor's paradox."
Settlement Payments Exempted from Avoidance
May 24, 2005
Under ' 546(e) of the Bankruptcy Code (the so-called "stockbroker defense" to select voidance actions), Congress has exempted from avoidance any "settlement payment" that is made "by or to a commodity broker, forward contract merchant, stockbroker, financial institution, or securities clearing agency, that is made before the commencement of the case," except where the transfer is fraudulent under ' 548(a)(1)(A) of the Bankruptcy Code. 11 U.S.C. ' 546(e). So what exactly is a "settlement payment"? Prior to the BAP decision in <i>In re Grafton Partners</i>, the answer to this question was surprisingly unclear.
No Time for Bankruptcy Venue Hypocrisy
May 24, 2005
Senator John Cornyn of Texas introduced the "Fairness in Bankruptcy Litigation Act of 2005" (S. 314) on Feb. 8, calling it the "end to judge shopping ..." According to the Senator, "[F]orum shopping is wrong. It distorts and corrupts our justice system." Bankruptcy Reform: Hearing on S. 256 and S. 314 Before Sen. Judiciary Comm., 2005 Legis. (Feb. 10, 2005). There may be merit to Sen. Cornyn's bill, but not in his rhetoric, driven, as the facts show, by a desire to increase his home state's market share in the competition for big bankruptcy reorganizations.
The New Code's Effect on Taxes
May 24, 2005
There are many sections of the new Bankruptcy Act that address various tax issues; some of the most important and relevant corporate changes are explored in this article.
The Debtor's 'Insolvency' for Avoidance Actions
April 27, 2005
This article focuses on the uses of the term "insolvency" in the avoidance context, including the impact of the 2004 case, <i>Heilig-Meyers Co. v. Wachovia Bank N.A. (In re Heilig-Meyers Co.)</i>, 319 B.R. 447 (Bankr. E.D. Va. 2004), which, while limiting its analysis to a preference context, sheds some light on judicial gloss on the term "insolvency" as it is used both explicitly and implicitly throughout the Code. In addition, it examines definitions of "insolvent" and the presumption of insolvency in preference actions, discusses fair valuation and going-concern valuation methodology, and looks at the standard of proof and types of evidence to establish insolvency (including retrojection and projection).
The Metamorphosis of Assignment Clauses in Bankruptcy
April 27, 2005
How is this scenario for a debtor's nightmare? You negotiate a license agreement that provides for the assignment of the agreement to successors in interest so long as they agree to be bound by the terms of the agreement. You then file a Chapter 11 bankruptcy and as a debtor in possession, seek to assume that license agreement. The other party to the contract objects to such assumption and the Bankruptcy Court says that in light of such objection you cannot assume the license agreement. You cannot reorganize without the license. You are dead.
Final IRS Regulations Hurt Consolidated Groups
April 27, 2005
Just when you thought you had finally mastered the complex temporary regulations issued last March regarding the reduction of tax attributes of members of an affiliated group of corporations filing consolidated income tax returns ("consolidated group" or "group") following a cancellation of the debt, the IRS has served up another dose of "March Madness." The IRS has now issued those regulations in final form and has made some significant "revisions" to the provisions of the temporary regulations that focus on how tax attributes are to be reduced when a subsidiary either ceases to be, or becomes, a member of the consolidated group. This article briefly discusses how these significant "revisions" will impact financially troubled consolidated groups.
Around the Firms
March 30, 2005
Cozen O'Connor to Acquire Most of Fischbein Badillo's Lawyers
