Double Duty: UCC Definition of Goods Same for ' 503(b)(9)
December 18, 2009
As most practitioners know, the Bankruptcy Code imposes a specific priority scheme that controls the payment of claims. The higher the priority of a particular claim, the more likely it is to be paid. Generally, secured claims are paid first from the specific collateral backing that claim, followed by administrative priority claims, unsecured priority claims and then general unsecured claims. Equity takes last, assuming there is anything left.
Heightened Pleading Standards Apply to Avoidance Complaints
December 18, 2009
Parties to preference and fraudulent transfer actions should pay careful attention to the decision in <i>Angell, Trustee v. Ber Care, Inc. f/k/a PPS, Inc., et al. (In re Caremerica, Inc.)</i>. There, Bankruptcy Judge J. Rich Leonard dismissed certain avoidance claims and upheld others asserted by a Chapter 7 trustee. <i>Caremerica</i> provides useful guidance regarding whether particular elements of a preference or fraudulent transfer claim have been adequately pled.
Taxpayer Victory in Con Edison LILO Shocks IRS
December 18, 2009
In <i>Consolidated Edison Company v. United States</i>, the taxpayer's tax treatment of a LILO transaction was upheld by the court, and all tax benefits claimed by the taxpayer were sustained. Naturally, some muckraking columnists hurried to criticize the Con Edison decision, expressing disappointment that the court actually applied historic leasing case law to a well-developed factual record. Despite their whining, the case demonstrates that the IRS (and the muckrakers) was wrong to treat all LILO and SILO transactions as though they were some prepackaged tax-shelter commodity. Each case turns on its facts, and the taxpayer wins in a properly chosen and argued case.
Medspa Operations
December 18, 2009
The medical spa industry has grown rapidly over the last several years. In 2004, there were only 471 in the United States, but by 2009 there were nearly 2,000. The law of averages suggests that with more spas, more treatments and more injuries, there are bound to be more mishaps and adverse reactions at these facilities.
The Law of Unintended e-Consequences
December 18, 2009
Everyone who has ever worked on a tech project, whether in e-commerce or general business, has probably seen situations in which an assumed solution creates a bigger mess than the original problem. It's called <i>the law of unintended consequences.</i> A recent federal appellate ruling shows how this rule can work in the law.
Sometimes Hell Does Freeze Over
December 18, 2009
The recent decision in <i>Reliastar Life Insurance Co. of New York v. Home Depot U.S.A., Inc.</i> illustrates once again the limits of a purchaser's or lender's ability to rely on an estoppel certificate, especially when a tenant is entitled to claim constructive eviction. Moreover, the court determined that constructive eviction would trump a "hell or high water" commitment to pay rent.
Trucking and Machine Tool Repos Decline In Q3
November 30, 2009
The third-quarter results of Nassau Asset Management's NasTrac Quarterly Index ("NQI") show a decline in trucking and machine tool repossessions, as compared with the same quarter last year, while construction and printing equipment repos continued to rise.
New Burdens for Federal Contractors
November 30, 2009
It is becoming more burdensome under the Obama administration for leasing companies to do business as federal government contractors. In addition to maintaining an Affirmative Action Plan with accompanying statistics, reports, and logs, contractors will now be required to post a notice informing employees of the right to organize a union under the National Labor Relations Act and be required to use the federal E-Verify system to authenticate the identity and employment eligibility of job applicants and employees.
Canadian Insolvency Law Amendments
November 30, 2009
On Sept. 18, 2009, the Canadian government enacted significant Amendments to Canada's Bankruptcy and Insolvency Act and Companies' Creditors Arrangement Act. This article focuses on certain of the Amendments to which equipment financiers should pay particular attention as they may impact how equipment financiers transact business.
