Involuntary Petitions Under BAPCPA
May 29, 2007
Last month, tha authors noted that on Oct. 17, 2005, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ('BAPCPA') was implemented without the collapse of the bankruptcy world as we knew it. They discussed the 'changes' to ' 303, and several key cases. This article continues the discussion.
Fraudulent Transfer Analysis Turns Sour
May 29, 2007
The Third Circuit, on March 30, 2007, affirmed a district court judgment dismissing a $500 million fraudulent transfer and breach of fiduciary duty suit against Campbell Soup Co., the former parent of Vlasic Foods International ('VFI' or the 'debtor'). <i>VFB, LLC v. Campbell Soup Co.</i>, 2007 WL 942360 (3d Cir. 3/30/07). VFI's creditors, acting through the reorganized entity, known as VFB, claimed that Campbell's March, 1998 $500 million stock sale (or 'leveraged Spin') of its Specialty Foods Division (including subsidiaries such as Vlasic (pickles) and Swanson (TV dinners)) to VFI, a newly formed, wholly owned subsidiary, was a fraudulent transfer because VFI did not receive reasonably equivalent value and because its $500 million payment rendered it insolvent and under-capitalized. The Third Circuit, however, held that the District Court had properly found the Division acquired by the debtor to be 'worth well in excess' of the $500 million purchase price, and that the debtor was solvent at the time of its 1998 purchase. Relying on the District Court's market capitalization
Anti-Suit Injunctions
May 29, 2007
In a case of significance to the secondary loan and distressed claim market, a North Carolina state court has entered an 'anti-suit injunction' barring a group of secondary, secured debt holders (the 'Fund Defendants'), from commencing any actions against Wachovia Bank. The case, <i>Wachovia Bank, NA and Wachovia Capital Partners, LLC v. Harbinger Capital Partners, et al</i>, Civ. Action No. 07-CVS-5097, is pending in the General Court of Justice, Superior Court Division (Mecklenburg, NC) (the 'State Court Anti-Suit Action'), but its parties and the underlying facts arise from the Chapter 11 case of <i>In re Le-Nature, Inc.</i>, pending in United States Bankruptcy Court, Western District of Pennsylvania (the 'Bankruptcy Case').
Involuntary Petitions Under BAPCPA
April 27, 2007
As bankruptcy practitioners awaited the enactment and effective date of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ('BAPCPA'), the multitude of speaking panels, journals, and cocktail conversations offering their speculative commentary on the anticipated effects of the amendments to Title 11 paid increased attention to the proposed amendments' effects on the remedies afforded to creditors under ' 303 of the Bankruptcy Code ' namely the involuntary bankruptcy petition.
On the Move
April 27, 2007
Who's doing what in the bankruptcy world.
Limiting the Effect of BAPCA
April 27, 2007
This article first discusses <i>In re Dana Corp.</i>, 351 B.R. 96 (Bankr. S.D.N.Y. 2006)(<i>'Dana I'</i>), in which the Southern District of New York bankruptcy court denied a debtor's proposed employee 'incentive' program. The article then highlights the differences between the program proposed in <i>Dana I</i> and the program approved by the Southern District of New York in <i>In re Dana Corp.</i>, 2006 WL 3479406 (Bankr. S.D.N.Y. 2006) (<i>'Dana II'</i>). Finally, this article proposes options other than those utilized in the foregoing cases that might be available to bankruptcy practitioners in need of a way to ensure that their clients' top executives do not walk out the door.
Ad Hoc Committee Disclosure Requirements
April 27, 2007
An essential part of the Chapter 11 process is constructive dialogue and negotiation among all stakeholders involved in the bankruptcy case with a view toward building a consensus on the terms of a confirmable Chapter 11 plan. The Bankruptcy Code establishes a framework to promote such interaction by providing for the appointment of official committees of creditors and shareholders entrusted by statute with the duty to participate in the formulation of such a plan.
On the Move
March 26, 2007
Who's moving where; who's doing what.
Southern California's First Asbestos Bankruptcy
March 26, 2007
Litigation involving asbestos, which was used for decades as a fire retardant in many products, has littered the legal landscape for years. Several major companies have over the course of the last several years filed for bankruptcy as a result of the onslaught of this litigation. Since the 1980s, many asbestos manufacturers, including Johns Manville, declared bankruptcy under the weight of liability payouts. To date, an estimated 85 companies have filed for bankruptcy claiming asbestos liabilities as the cause. A Rand Institute for Civil Justice report indicates that more than 730,000 asbestos claims have been filed since the early 1970s. Roughly 200,000 claims are still pending in state and federal courts nationwide. Estimates predict that up to 2.4 million claims still may be filed before asbestos litigation finally runs its course.
When Trade Vendor Priority Claims Get Paid
March 26, 2007
The U.S. Bankruptcy Court for the Eastern District of Pennsylvania recently issued one of the first decisions in the 3rd U.S. Circuit Court of Appeals to interpret ' 503(b)(9), an important new Bankruptcy Code provision passed under the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA): <i>In re Bookbinders' Restaurant Inc.</i> ' 503(b)(9) is certain to impact the relationship between a debtor seeking to reorganize and the trade vendors that deal with it.
