Commercial and Regulatory Law

Committee Wide Update Call

The purpose of this call was to seek thoughts, suggestions, and assistance in setting and achieving new goals and objectives for the Committee. For example, they discussed ideas and topics for future newsletters, webinars, and educational sessions at ABI’s Winter Leadership Conference and Annual Spring Meeting. Additionally, the Committee discussed ideas for networking events and special projects for the Committee. Participating in future calls is a great way to get more involved!

In Rem Tax Foreclosures Can Be Avoided as Constructively Fraudulent Transfers

Add the Western District of New York to those courts holding that in rem tax foreclosures are not presumed to provide reasonably equivalent value to a debtor. In Canandaigua Land Development LLC v. County of Ontario (In re Canandaigua Land Dev. LLC), 521 B.R. 457 (Bankr. W.D.N.Y. 2014), the court granted summary judgment for a debtor whose land had been foreclosed for tax arrearages, holding that the in rem foreclosure was a constructively fraudulent transfer and ordering the county to convey the foreclosed land back to the debtor.

Expired CBAs Are Subject to the Bankruptcy Court’s Jurisdiction and Rejection Pursuant to § 1113

Section 365 of the Bankruptcy Code authorizes a debtor to assume or reject an executory contract.[1] An executory contract that has expired in accordance with its terms is generally not subject to assumption or rejection under the Code. However, a collective-bargaining agreement (CBA) presents a unique exception to that general rule because upon expiration of the CBA, employers are required to maintain the status quo while the employer and the union negotiates the terms of a new CBA under the National Labor Relations Act (NLRA).

Successor Liability in § 363 Sales

Recently, the U.S. Bankruptcy Court for the District of Delaware had the opportunity to further clarify the power of § 363 sale processes to cleanse assets and the fragile nature of pension claims in bankruptcy. The court considered and rejected an objection to a § 363 sale free and clear of any successor liability claim where the sale was supported by the debtors, the lenders and the unsecured creditors’ committee, but not the pension trust.

Unquantifiable Wrongs, Incomparable Remedies: Post-Petition Enforcement of Non-Compete Agreements

Once disfavored, non-compete agreements — contractual provisions prohibiting employees from competing with their former employers upon the relationship’s termination — have acquired new legitimacy in recent decades.

An Unordinary “Defense” to Preference Claims Against Employee Benefit Providers

Editor’s Note: This article is intended for educational purposes only. It is not intended to be legal, accounting or other professional advice. A party should consult with legal counsel when dealing with the issues addressed in this article. The views expressed in this article are solely those of the author and do not necessarily represent the views or opinions of Husch Blackwell LLP.

 

 

Sovereign Immunity and Fraudulent-Transfer Actions against the IRS

[1]A trustee for a bankrupt entity or a debtor has the power to bring an action to avoid and recover constructive or actual fraudulent transfers. Section 544(b) of the Bankruptcy Code specifically allows a trustee or debtor to step into the shoes of an actual creditor of the debtor, who could have avoided the transfer outside of bankruptcy using state law. The U.S. Court of Appeals for the Seventh Circuit recently analyzed a debtor’s power to bring a state law fraudulent-transfer action..

Wren Alexander, LLC: Of Tax Liens and Fraudulent Transfers

A 30-year friendship and business association between Charles Pircher and Wren Alexander ultimately cost one of Alexander’s companies, Wren Alexander Investments, L.L.C. (Wren LLC), its interest in certain real property in Medina County, Texas (Medina Property). On June 14, 2013, in a per curiam opinion, In re Wren Alexander Investments, LLC,[1] the U.S. Court of Appeals for the Fifth Circuit affirmed the affirmation of the U.S. District Court for the Western District of Texas of the allowance by the U.S.

Who Is Right: Delaware or the Eleventh Circuit?

When a bank fails and is liquidated by the Federal Deposit Insurance Corporation (FDIC), and then the bank’s holding company files for bankruptcy, a dispute frequently arises regarding ownership of tax refunds issued to a consolidated group (including the bank and the bank holding company) pursuant to consolidated tax returns. The parties to the dispute typically are the FDIC (derivatively through the failed bank) and the holding company’s bankruptcy estate.

Proper Maintenance of Profit-Sharing Plan Necessary to Benefit from Bankruptcy Exemption

In line with one of bankruptcy’s vaunted goals, providing debtors with a fresh start, the Bankruptcy Code specifically authorizes debtors to exempt retirement funds held in a compliant retirement account from property of the estate. When done properly, investing funds in a compliant profit-sharing plan can be a powerful financial-planning and asset-protection tool, putting almost unlimited funds out of creditors’ reach.

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