On September 27, 2019, three years after Congress passed PROMESA and two years after the most severe Hurricane in more than 100 years devastated Puerto Rico, The Financial Oversight and Management Board for Puerto Rico filed its proposed Plan to restructure $35 billion of debt and other claims against the Commonwealth of Puerto Rico, the […]
The Long Road Ahead? Puerto Rico Oversight Board Files Proposed Plan to Restructure the Commonwealth’s Debt and Other Claims
All Aboard! Navigating the Choppy Waters of the Critical Vendor Doctrine
A fundamental rule in bankruptcy proceedings is that prepetition claims are not paid without a plan or separate order of the bankruptcy court. Orders allowing payment of prepetition claims prior to the payments approved by a bankruptcy plan are very rare. One of these rare possibilities is the request to deem a creditor “critical”. Because […]
Pleading Fraudulent Transfers in the Wake of the U.S. Fifth Circuit’s Ruling In Life Partners Holding, Inc. v. Cowley
Introduction Rule 9(b) of the Federal Rule of Civil Procedure imposes a heightened pleading standard in cases where the Plaintiff alleges fraud or mistake. Compared to Rule 8(a), which requires a “short and plain statement of the claim,” Rule 9(b) demands pleading the “circumstances” of fraud “with particularity.” In the Fifth Circuit, when the Rule […]
Litigation in the Bankruptcy Venue: Similarities with General Federal Practice in Regard to Privilege and Expert Discovery
Whether it’s a client in financial difficulty or a client pursuing the collection of assets or debts owed, insolvency issues play a prominent role for federal practitioners with commercial and general litigation practices. However, the relatively small size and collegial nature of the bankruptcy bar in many jurisdictions — coupled with the need to move […]
To Arbitrate or Not to Arbitrate, That is the Question: Enforcing Arbitration Clauses in Bankruptcy
The Federal Arbitration Act, 9 U.S.C. §§ 1-307, represents a federal policy in favor of enforcing arbitration clauses. The Supreme Court has held that courts are generally obligated to enforce arbitration clauses absent a countervailing federal statute. Shearson/Am. Express, Inc. v. McMahon, 482 U.S. 220, 226 (1987). However, this policy inevitably comes into conflict with […]
Every Rose Has Its Thorn: Involuntary Bankruptcy Petitions
An April 16, 2019 ruling in the U.S. Bankruptcy Court for the Northern District of Texas in the case of In re: Essential Financial Education, Inc. held that an involuntary bankruptcy petition filed under 11 U.S.C. §303 may not dismissed when it serves a legitimate purpose and is not merely an extension of a two-party […]
WEBINAR: The Rights and Obligations of a Creditor in Bankruptcy
Paul Hammer is presenting a Webinar on June 5, 2019 at 3PM EST entitled “The Rights and Obligations of a Creditor in Bankruptcy” through the National Association of Credit Management. This is the first of a two-part series. I look forward to providing useful content to NACM membership (over 14,000 members as of today’s date) […]
PRESENTATION: Keeping Your Truck on the Road: Examining Challenges Arising in Chapter 11 Trucking Cases
Michael Ridulfo is presenting on June 5, 2019 at the Turnaround Management Association Houston Chapter Breakfast Meeting, on the topic of “Keeping Your Truck on the Road: Examining Challenges Arising in Chapter 11 Trucking Cases”. Register open to members and non-members on the TMA website. HOUSTON CHAPTER EVENT TMA Houston June 5 Breakfast Meeting Wednesday, […]
Protecting Oil & Gas Royalty Interests in Energy-Related Bankruptcies
With the recent uptick in energy-related bankruptcies expected to continue for the foreseeable future (in one prominent example, industry giant Weatherford has just filed for Chapter 11 protection), oil and gas royalty owners need to be on alert. Because companies in financial distress usually fall behind on royalty payments, royalty owners, usually one of the […]
Duties and Obligations of Ombudsmen in Healthcare Bankruptcies – Public Safety Comes First
Healthcare bankruptcies present unique challenges in addition to financial restructuring. An immediate concern that must be addressed in these cases is the ability of the debtor to provide, and continue to provide, adequate services to existing and future patients. Having been involved in numerous healthcare matters filed under both Chapter 7 and Chapter 11, I […]