July 12, 2018 | The Legal Intelligencer
Ninth Circ. Reviews Whether Claims Purchased in Good Faith to Block Chapter 11 PlanIt is interesting for one who has practiced bankruptcy law for 35 years to observe that many issues adjudicated in 1983 continue to require judicial review in 2018.
By Andrew C. Kassner and Joseph N. Argentina Jr.
1 minute read
June 06, 2018 | The Legal Intelligencer
Opt-Out Mechanism Enables Substantive Consolidation Under Chapter 11 PlanSubstantive consolidation is a procedure that can be implemented by a bankruptcy court to treat two or more debtors in bankruptcy as one entity by pooling the assets and claims of the entities, eliminating inter-company claims, and combining the creditors of the entities for purposes of voting and distribution on and under a Chapter 11 plan of reorganization.
By Andrew C. Kassner and Joseph N. Argentina Jr.
1 minute read
March 06, 2018 | The Legal Intelligencer
Rent-A-Wreck Crash Into Bankruptcy Dismissed for Lack of Good-Faith FilingThe U.S. Bankruptcy Code provides distressed companies an array of tools to reorganize their business affairs and restructure their debt.
By Andrew C. Kassner and Joseph N. Argentina Jr.
10 minute read
January 08, 2018 | The Legal Intelligencer
Involuntary Proceeding Suspended to Permit Disposition of State Court LitigationMost bankruptcy cases are commenced by the filing of a “voluntary” bankruptcy petition by the debtor. In fact, as we have reported previously, today the bankruptcy process is dominated by prearranged restructurings involving advance planning and negotiations with potential purchasers and stakeholders that result in the business aspects of the bankruptcy process being substantially finalized at the time of the filing.
By Andrew C. Kassner and Joseph N. Argentina Jr.
9 minute read
October 19, 2017 | The Legal Intelligencer
Parking Authority Sanctioned for Causing Emotional Distress From Car TowingOne of the fundamental benefits of the filing of a bankruptcy case is the imposition of the “automatic stay” that bars creditor actions to continue collection of pre-petition debts without first obtaining relief from the stay from the bankruptcy court.
By Andrew C. Kassner and Joseph N. Argentina Jr.
7 minute read
September 13, 2017 | The Legal Intelligencer
Court Adopts 'Probable' Standard for WARN Act NoticingBankruptcy cases are often filed after a distressed company has determined the only way for the business to survive as a going concern is to pursue a sale. The sale process is conducted prior to the filing, and the case is filed, together with a request that the court approve the sale of the company pursuant to the terms of the negotiated sale agreement unless a higher offer is received. Often there is no alternative, and the question is whether the sale to the bidder will be approved and closed. If it does not close and the company is forced to liquidate, other federal laws may come into play.
By Andrew C. Kassner and Joseph N. Argentina Jr.
18 minute read
July 14, 2017 | The Legal Intelligencer
Independent Director Tacitly OKs Bankruptcy by Silent RatificationOver the years, the real estate industry relied heavily on securitization vehicles to finance commercial real estate projects. The loans are packaged and then sold in pools to investors. Various mechanisms have been developed to facilitate collection of the loans without the uncertainty of a borrower bankruptcy filing that could delay and increase the costs of collection. Lenders in these secured transactions often use special purpose entities, or SPEs, to attempt to limit the risk of a borrower bankruptcy filing. While these structures can vary, the concept is to create a separate corporate entity whose only purpose and asset is the one real estate project, and the only significant obligation is the mortgage loan. The SPE is isolated from the financial affairs of the corporate parent or affiliates. The lender requires the borrower to appoint an independent director to the board from a mutually acceptable source, and unanimous board approval for certain key decisions, such as the decision to file for bankruptcy. Consequently, a lender is able to reduce the risk of delay after default and high costs of collection, and the borrower benefits from lower interest rates and fees from the lower cost loan.
By Andrew C. Kassner and Joseph N. Argentina Jr.
16 minute read
June 08, 2017 | The Legal Intelligencer
Post-'Jevic,' Expansive Interpretation by Bankruptcy Courts PossibleIn our last column we reported on the U.S. Supreme Court's decision in Czyzewski v. Jevic Holding, 137 S. Ct. 973 (2017). In that decision, the court ruled a bankruptcy court may not order a structured dismissal of a Chapter 11 case that provides for estate assets to be distributed in violation of the Bankruptcy Code's distribution scheme. The decision was widely discussed by bankruptcy practitioners, in part because there are a number of common practices in Chapter 11 that also distribute estate assets in violation of the bankruptcy code's distribution scheme.
By Andrew C. Kassner and Joseph N. Argentina Jr.
8 minute read
April 20, 2017 | The Legal Intelligencer
High Court Addresses Structured Dismissal of Bankruptcy CaseIn bankruptcy practice, courts are often faced with situations where a global solution to the case is presented that benefits most—even substantially all—but not all constituencies. Under these circumstances, lawyers attempt to craft creative solutions to implement such deals. The question arises: do the ends justify the means?
By Andrew C. Kassner and Joseph N. Argentina Jr.
17 minute read
March 06, 2017 | The Legal Intelligencer
Sale That Provides No Recovery for Junior Lienholders ApprovedOne of the most important tools in the debtor's toolbox of rights under the Bankruptcy Code is the ability to seek a sale of assets of the estate that are encumbered by liens, and deliver title free and clear of such liens.
By Andrew C. Kassner and Joseph N. Argentina Jr.
17 minute read
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