The Supreme Court is currently considering the case of Wellness International Network, Ltd. v. Shariff. As discussed in the blog post on February 16, 2015, at issue in the Wellness International Network case is “whether Article III of the United States Constitution permits the exercise of judicial powers of the United States by the bankruptcy […]
Litigant Consent and the Power of the Bankruptcy Court
Do You Know What is in Your Buyer’s Wallet?
In a recent ruling, the Ninth Circuit held that a seller was liable under the law of fraudulent conveyance to the bankruptcy trustee for the portion of the purchase price funded by a company controlled by the buyer, which was actually a Ponzi scheme, that later filed bankruptcy. Mano-Y&M Ltd. v. Field (In re Mortgage […]
Stern with a Twist: Supreme Court to Consider Constitutional Authority of Bankruptcy Courts
The Supreme Court has an opportunity to clarify the constitutionality of the allocation of power between federal district courts and bankruptcy courts. On July 1, 2014, the Supreme Court granted certiorari in Wellness International Network, Ltd. v. Sharif[1] to address the following: (1) Whether the presence of a subsidiary state property law issue in an […]
The Enforceability of Liquidated Damages Clauses
The enforcement of a liquidated damages clause can mean the difference between money in a party’s pocket with little effort versus a protracted and expensive court battle. To learn more, click on the link below to an article recently published by the online news site Hotel News Now: http://www.hotelnewsnow.com/Article/15177/Enforceability-of-liquidated-damages-clauses
Recommendations of the ABI Commission to Study the Reform of Chapter 11: Intellectual Property Licenses
Beginning in 2012, a distinguished group of bankruptcy attorneys, academics and judges known as the American Bankruptcy Institute (ABI) Commission to Study the Reform of Chapter 11 (the Commission) held periodic meetings throughout the U.S. to analyze and discuss comprehensive reforms to chapter 11 of the Bankruptcy Code. The results of their analyses and recommendations […]
Structured Dismissals – How They Work Part II: Proving That Cause Exists to Dismiss the Case Under Section 1112(b)
A. Where We Left Off As noted in Part I, movants seeking approval of a structured motion to dismiss must generally prove that: (1) the court has the power to enter an order approving a structured dismissal; (2) “cause” exists to approve the structured dismissal; and (3) the structured dismissal is in the best interest […]
Recommendations of the ABI Commission to Study the Reform of Chapter 11: Preference Claims
From time to time it has proved beneficial to revisit existing bankruptcy statutes, and update them where necessary. The American Bankruptcy Institute established the Commission to Study the Reform of Chapter 11 (the “Commission”) for this precise purpose, and on December 8, 2014 the Commission published its recommendations. If enacted by Congress, some of those […]
Franchisor Strikes Out in Bankruptcy Court
Occasionally, a case comes along that shows how things can go wrong for a franchisor in bankruptcy court. Cumberland Coral, LLC, is just such a case. To learn more about the case and the issues raised for franchisors and franchisees, click on the link below to an article recently published by the online news site Hotel News Now: […]
Determining “value” given by good faith transferee in fraudulent transfer action
The Bankruptcy Code allows a trustee to recover fraudulent transfers made by the debtor prior to bankruptcy. 11 U.S.C. § 548(a). An innocent recipient of a fraudulent transfer is not without a defense, however. The Code allows a transferee that takes in good faith to retain what it received from the debtor in a fraudulent […]
Bankruptcy Court: It Is the Proper Forum for Trade Secret Dispute
You are embroiled in a contentious trade secret lawsuit. In the midst of the litigation, your competitor files for bankruptcy and proposes to sell its assets. Do those assets include the trade secrets? Which court makes that determination? To find out how one bankruptcy court addressed these issues, click on the link below to an […]