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Have GM and Chrysler Sales Made Reorganization Requirements Obsolete?

Friday, November 6, 2009

By Stuart Hirshfield

Stuart Hirshfield, a member of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, writes that in two recent monumental bankruptcy cases, the U.S. Bankruptcy Court for the Southern District of New York approved the sales of the bulk of each of Chrysler and GM's assets, outside of the ordinary course of business, pursuant to §363 of the Bankruptcy Code. The sales were approved shortly after the filing of the respective debtors' petitions commencing their voluntary Chapter 11 cases, and, he notes, in each case, the U.S. government played a significant role in effectuating the sales, through substantial prepetition financing and becoming a significant owner of each of the acquired entities.

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Local Law 7: Expanding 'Housing Standards' in the Civil Court

Thursday, November 5, 2009

By Menachem J. Kastner and Ally Hack

Menachem J. Kastner, a member of Cozen O'Connor, and Ally Hack, an associate at the firm, discuss Local Law 7, which was enacted to give tenants yet another avenue to pursue "landlord harassment" claims, and its issues and inconsistencies, which provide fertile ground for advocacy on behalf of building owners. In the end, write the authors, Local Law 7 is inherently ambiguous, seemingly contradictory, impermissibly subjective and out of place within New York City's Administrative Code's enforcement scheme. It remains a fertile arena for litigation until the Appellate Courts speak on its meaning and intent.

Pandora's Box and the Bank of America

Wednesday, November 4, 2009

By C. Evan Stewart

C. Evan Stewart, managing partner of the New York office of Zuckerman Spaeder, an adjunct professor of law at Fordham Law School, and a visiting professor at Cornell University, writes that the Pandora's Box, which Judge Rakoff opened in order to "protect" BoA shareholders, has resulted in (a) costly litigation with the SEC in which BoA will likely prevail, (b) costly civil litigation with private parties in which BoA will have great difficulty protecting privileged communications, (c) governmental agencies (like the SEC) likely shifting their enforcement/settlement protocols in ways that protect the agencies from public embarrassment (while not necessarily affording their public company targets more due process rights), and (d) corporate executives (and the lawyers who advise them) having no faith that the corporate attorney-client privilege has a breath of life left.

Free With Registration: Revisiting 'Bruton' Issue on Confessions and Limiting Instructions

Tuesday, November 3, 2009

By Paul Shechtman

Paul Shechtman, a partner at Stillman, Friedman & Shechtman and an adjunct professor at Columbia Law School, discusses a recent Second Circuit decision that allowed the use of one defendant's confession with references to the second defendant replaced with the words "another person." The court found the confession passed muster under Tutino, reasoning that the jury had to refer to other trial evidence to link the second defendant to the redacted statement, but is Tutino the right test?

Accommodating Struggling Borrowers: No Good Deed Goes Unpunished

Monday, November 2, 2009

By Howard E. Cotton and Michael S. Gordon

Howard E. Cotton and Michael S. Gordon, partners at Katten Muchin Rosenman, write that in the current economic climate, lenders continue to face the Hobson's Choice of how to respond to once-reliable borrowers who are now showing signs of distress. If a lender opts to accommodate a delinquent borrower rather than pursuing foreclosure, deferring acceleration or other enforcement rights upon the occurrence of an "event of default," under recent case law, that lender might be deemed to have modified or waived certain rights under the original loan documents at issue, even if these underlying documents contain "no waiver" or "no oral modification" provisions.

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