Bankruptcy Litigation

Fleming: Executory Contract Assignment Not Approved When Proposed Assignee Could Not Comply with aTerm Deemed Integral to the Bargained-for Exchange

Section 365(f) of the Bankruptcy Code permits a debtor to assume and assign an executory contract so long as adequate assurance of future performance is provided to the nondebtor party. However, the phrase “adequate assurance of future performance” is not defined in the Bankruptcy Code, and thus courts must interpret its meaning.

Practical Pitfalls in Boilerplate Notice Provisions

With bankruptcy filings back on the rise, it’s natural for the more efficiency-minded among us to look for ways in which to speed along the restructuring process. Boilerplate notice provisions in court orders are a common method for accomplishing this task, helping speed cases along to conclusion. If, however, such a provision precedes a fundamental change in a case, such as dismissal, is the boilerplate notice really sufficient? In short, does simply stating that an order provides sufficient notice under 111 U.S.C.

Practice Tip: Using Summary Judgment to Establish a Fraudulent Conveyance

A widely held assumption in bankruptcy cases and other litigation is that fraudulent intent cannot be established on a summary judgment motion but may only be found after a full trial on the merits. Judges in fraudulent conveyance cases are not accustomed to deciding intent, solvency or constructive fraudulent conveyances on summary judgment evidence and may simply assume that if a case is not settled, it will be tried.

When a Statutory Lien Becomes a Secret Lien

The U.S. Bankruptcy Court for the Eastern District of New York recently decided in In re R.F. Cunningham & Co. Inc., 355 B.R. 408 (Bankr. E.D.N.Y. 2006), in the context of a motion to lift the automatic stay, that a statutory lien under Ohio law was susceptible to being avoided as a secret lien under §544(a)(1) of the Bankruptcy Code. Champaign Landmark, an Ohio vendor, was owed approximately $150,000 for grain picked up by the New York debtor.

Using §105 Injunctions to Enjoin Collection Actions against a Debtor’s Principals

The use of §105(a) to enjoin actions against a chapter 11 debtor’s principals has a long history under the Bankruptcy Code.

Recent Decisions Set a High Bar for Maintaining Confidentiality of Commercial Information

A number of recent decisions on whether to seal confidential commercial information under §107 of the Bankruptcy Code set a high bar for keeping information confidential.

Pre-Plan Settlements Post-Iridium: Priority Scheme Will Be Most Important Factor

On March 5, 2007, in Motorola Inc. v.

The E-Discovery Amendments to the Federal Rules of Civil Procedure

The recent amendments to the Federal Rules of Civil Procedure, effective Dec.

Buyer Beware - Purchaser’s Liability for Failure to Preserve Seller’s Books and Records Relating to Assumed Liabilities

The Bankruptcy Court for the District of Delaware recently entered an opinion in Quintus Corp. v. Avaya Inc. (In re Quintus), No. 04-53074, 2006 WL 3072982 (Bankr. D. Del. Oct.

What Is a “Fair Valuation”?

In order for a trustee or debtor-in-possession (DIP) to recover a fraudulent transfer pursuant to §548 of the Bankruptcy Code (absent an actual intent to hinder, delay or defraud creditors), one key element that must be established is that the debtor was either insolvent on the date that such transfer was made or the obligation was incurred, or bec

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