The Retail Debtor's 'Year in Review'
November 29, 2004
Welcome to the most magical time of a retailer's year -- the Holiday Selling Season. It seems fitting as retailers enter this "make-it-or-break-it" period that we examine the Retail Debtors' Year in Review. After all, if Santa is kind to bankruptcy professionals, a few retailers currently holding on will go down the ... chimney. If 2004 provides any indication as to how some courts are approaching issues affecting retailers, various courts were anti-vendor in special relief; pro-contract party regarding assumption and assignment issues; and, when it comes to the asset-disposition auction process, it is anybody's game!
Litigation
November 01, 2004
Recent rulings of importance to you and your practice.
Who Gets the Tax Refund?
November 01, 2004
Income tax refunds can involve substantial sums, and are a frequent source of disputes between divorcing spouses. Before advising a client regarding distribution of a joint tax refund, the matrimonial practitioner should review the applicable law. Federal tax law often dictates a different result from that of state equitable distribution or community property law, and the lawyer must know the difference. Liability for taxes does not necessarily confer a property interest. For example, although the parties to a joint federal income tax return are jointly and severally liable for the taxes payable for the year in question, and although the refund check is drawn to the order of the parties jointly, they do not necessarily have joint ownership rights to the tax refund.
The Changing and Conflicting State of Same-Sex Marriage
November 01, 2004
The May 17, 2004 legalization of same-sex marriage in Massachusetts cleared a symbolic and practical barrier to marriage between persons of the same sex within the United States, as the state became the first in the U.S. to give legal sanction to marriage between persons without regard to gender. The formal legal acceptance of same-sex marriage by a single jurisdiction within the United States, however, merely exacerbated a problem that has been developing and evolving for some time: the growing legal uncertainty brought by the legalization of same-sex marriage and unions by certain jurisdictions on the one hand, and increasing efforts to prohibit them from being granted or recognized, in others.
Making the Case for a 'Good Faith' Chapter 11 Filing
October 29, 2004
The distinction between recourse to Chapter 11 protection as a legitimate means to maximize the value of a company's assets and/or to restructure its financially troubled yet otherwise viable operations, on the one hand, and clear bankruptcy abuse, on the other, is sometimes murky. A court called upon to make such a distinction is obliged to "get into the debtor's head" and investigate the board's motives for commencing a bankruptcy case and, in some cases, to decide whether the debtor's otherwise permissible use of the powerful provisions of federal bankruptcy law is impermissible because the debtor's motives are antithetical to the basic purposes of bankruptcy.
Bankruptcy Behind Closed Doors
October 29, 2004
Last month, we discussed the perceptible increase in the number of bankruptcy transactions taking place with the underlying arrangements being placed under seal. We discussed disclosure obligations, Section 107 and Bankruptcy Rule 9018, and commercial information, citing <i>Orion Pictures</i> as a leading case on the issue of what constitutes "confidential commercial information." Defining the limits of confidential commercial information can also be aided by reviewing cases decided both prior to and after <i>Orion Pictures</i>, where courts have refused to seal court records.
U.S. Recognition of International Financial Restructurings
October 29, 2004
There has been a significant increase in litigation in the U.S. under Section 304 of the U.S. Bankruptcy Code. It is through that statutory mechanism that foreign issuers, having sold debt in the U.S., restructure the debt under foreign restructuring regimes and then return to the U.S. for "recognition." Recognition under ' 304 has been read to cut off claims and litigation by U.S. creditors in U.S. courts, avoid U.S. judgments for collection, and hence can pave the way for the foreign company to access the U.S. capital markets in the future.
Litigation
October 01, 2004
Recent rulings of interest to you and your practice.
Bankruptcy Behind Closed Doors
September 28, 2004
There has been a perceptible increase in the number of bankruptcy transactions taking place with the underlying arrangements being placed under seal. In other instances, the debtor indicates in its motion seeking approval of the transaction that it will not be providing the underlying agreement on which the transaction is based except to the major parties in the case (typically the judge, the creditors' committee, the DIP lenders and the United States Trustee). The burden then shifts to parties in interest to seek to obtain the information if they desire to review it. Part One of a Two-Part Article.
