July 7 - Members and Subscribers - Welcome to the new and improved abi.org! - If you have not already done so, please reset your ABI password to access the site. Click "Login" and then "Forgot Password"
The “presumption against extraterritoriality” is a statutory canon of construction that embodies the “longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.”[1] Stated simply, it provides that “[w]hen a statute gives no clear indication of an extraterritorial application, it has none.”
[1]A powerful and commonly utilized tool in a restructuring is the commencement by a company of an insolvency proceeding, whether under the Bankruptcy Code or analogous law, in order to achieve desired changes to its capital structure and/or operations. However, there are certain instances where, due to legal or commercial reasons, the use of an insolvency proceeding is not available.
Editor’s Note: The following article, “Loehmann’s Department Store: A Case Study Questioning the § 365(d)(4) Liquidation Narrative Following BAPCPA,” won the prize for third place in the Sixth Annual ABI Bankruptcy Law Student Writing Competition. The author, Brian Phillips, is a student at University of North Carolina School of Law, Chapel Hill, N.C. In addition to recognition and publication of his article in the Business Reorganization Committee Newsletter, Mr.
Editor's Note: The following article, "Bridging the Gap: Receivership and the Absence of Discipline in Chapter 9," won the prize for second place in the Sixth Annual ABI Bankruptcy Law Student Writing Competition. The author, Randall Thomas, is a student at New York University School of Law. In addition to recognition and publication of his article in the Business Reorganization Committee Newsletter, Mr.
In certain situations, the sale of an operating entity as a going concern in a receivership proceeding is a viable alternative to seeking relief under the Bankruptcy Code. Receivership going-concern sales may be especially appropriate in complex situations where enterprise value is declining, but the company is not hopelessly insolvent. This article briefly highlights those conditions, factors, situations and circumstances that may contribute to or impede a successful going-concern transaction within a court-supervised commercial receivership.
Courts across the country have recently been confronted with disputes originating from the acquisition of distressed debt or loans by a party, and the subsequent chapter 11 bankruptcy case commenced by the debtor company.
The right to credit-bid is one of the most valuable rights afforded to secured creditors under the Bankruptcy Code. Credit-bidding is the process by which a secured creditor places a bid at a sale of the collateral to which its lien is attached, using the debt owed to it to offset the purchase price.[1] Section 363(k) of the Bankruptcy Code allows secured creditors to credit-bid when a debtor conducts a sale of assets outside the ordinary course of business.[2]
Collateral estoppel, or issue preclusion, is an important doctrine that protects parties from expensive and vexatious litigation where those parties have previously had a “full and fair opportunity to litigate” the issues.[1] Within the Third Circuit, “a court will bar re-litigation of an issue on collateral estoppel grounds when ‘(1) the identical issue was previously adjudicated; (2) the issue was actually litigated; (3) the previous determination was necessary to the decision; and (4) the party being precluded from relitigating the issue was ful
Due to the increasing integration of the world’s economies, globalization is now a business reality, even for lower- and middle-market companies. Accordingly, it is becoming more commonplace for foreign debtors to initiate chapter 15 proceedings in the U.S. in connection with insolvency-type proceedings in their home countries. The increasing frequency of chapter 15 proceedings requires insolvency and restructuring practitioners to be versed in the fundamentals of chapter 15 jurisprudence before their clients encounter it.
Editor’s Note: This is the second installment of a two-part series by the author. The first article was published in the December 2013 edition of the Business Reorganization Committee Newsletter.
The Bankruptcy Case: Determining Insolvency When Key Assets Are People
