Business Reorganization

Beware the Limits of Federal Rule of Evidence 408: “Confidential Settlement Communications” in One Matter May Not Be in Another

Lawyers often prominently designate a letter or e-mail communication as a “Rule 408 Protected Settlement Communication” that is “inadmissible” as evidence. That label will be in bold and italicized, maybe in all caps, for emphasis. Similarly, at the beginning of a telephone, virtual or in-person meeting, an announcement that it is a “Rule 408 Settlement Conference” may be uttered and met with general agreement.

Consent in a Post-Purdue World

In the wake of the U.S. Supreme Court’s Harrington v. Purdue Pharma L.P. [1] decision definitively doing away with nonconsensual third-party releases, courts and practitioners alike have been struggling with the meaning of “consensual” in the context of such releases. One such jurist is the Hon. Craig Goldblatt of the U.S. Bankruptcy Court for the District of Delaware, who tackled the issue in the recent In re Smallhold Inc. [2] decision.

Working Together: Collaboration Between Secured Creditors and Unsecured Constituents

This panel will discuss the historical relationship between secured and unsecured creditors in reorganization cases, and explore recent instances where the groups have worked together to create value for their constituents. The panelists will include an overview of the key positions taken by each group, and will provide first-hand descriptions of how the constituents were able to achieve consensus.

Business Reorganization | September 2024

Bankruptcy’s Turn to Market Value

Many lawyers viewed chapter 11, which came into effect in 1979, as unsuccessful in the 1980s. Large firms had been mired in bankruptcy for years — three years, on average. The process was seen as expensive, inaccurate and subject to abuse. While bankruptcy today still has problems with considerable conflict, and few would say it works perfectly, the overall contrast with bankruptcy today is stark: Bankruptcies that took years in the 1980s take months in the 2020s.

District Court Reverses Bankruptcy Court’s Holding that a Chapter 11 Equityholder Committee Is “Automatically Dissolved” upon Dismissal

District Court Judge Frank Geraci of the Western District of New York stirred the pot on what seemed like a settled chapter 11 issue by reversing the bankruptcy court and rejecting the majority view on the fate of official committees upon dismissal of a chapter 11 case.[1]

Will Your Client Get a Discharge? Surveying Recent Subchapter V Decisions on § 523(a)

Several debts are “excepted” from the bankruptcy discharge. [1] Corporate debtors can overcome some of these exceptions to the discharge through chapter 11. [2] But before a corporate debtor can get its discharge, it must confirm a plan, and only 20% of regular chapter 11 plans are confirmed. [3]

Business Reorganization | February 2024

Trading in Bankruptcy Claims Is Dominated by Crypto and Binary Claims

What’s been going on in the bankruptcy claims marketplace over the past year? Crypto, crypto, crypto, sprinkled in with a little bit of trucking, courtesy of the Yellow Corp. case. [1]

Third Circuit Rules Appointment of an Examiner Is Mandatory; Is It Time to Amend the Statute?

The Third Circuit has a reputation as being a “plain meaning” court — meaning that it strictly construes and applies the words of a statute. Its Jan. 19, 2024, opinion in In re FTX Trading Ltd. [1] is an example. The relevant facts in the “highly complex” FTX bankruptcy were few and straightforward as they related to the question before the court: “whether 11 U.S.C. § 1104(c)(2) mandates bankruptcy courts to grant the U.S.