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Winter 2023 ABI Law Review Articles Highlight Recent Issues Surrounding Third-Party Releases in Bankruptcy

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Alexandria, Va. — The Winter 2023 edition of the American Bankruptcy Institute (ABI) Law Review (Volume 31, No. 1) features two articles examining the hot-button issue of third-party releases in recent chapter 11 proceedings. Profs. Jeanne L. Schroeder and David Gray Carlson of the Benjamin N. Cardozo School of Law (New York) open the issue with their piece, “Third Party Releases Under the Bankruptcy Code After Purdue Pharma,” which analyzes the plan confirmed in the landmark case — specifically, the plan’s purported release of derivative claims. They also discuss the subsequent reversal of the bankruptcy court’s confirmation order and the current unsettled state of the case, as well as what role, if any, that jurisdiction plays in the confirmability of a plan of reorganization.

Stephen W. Sather of Barron & Newburger, PC (Austin, Texas) provides the second article, “The Controversial Role of Third-Party Releases in Bankruptcy.” In his piece, Sather acknowledges the prominent role of third parties in bankruptcy and breaks down the statutory authority providing for different types of third-party provisions and, most significantly, third-party releases. He notes that while third-party releases are a significant and valuable tool within bankruptcy, the stakes are high, and Sather recommends several modest-but-powerful legislative reforms that could provide clarity and consistency to third-party provisions that draw on settled procedural law.

Other articles included in the Winter 2023 ABI Law Review include:

  • “The Benefits of Hindsight: Determining Whether a Receipt of Benefits Is a Necessary Element of the Fraud Exception to Discharge,” by Daniel M. Tavera, law clerk to Hon. John P. Gustafson of the U.S. Bankruptcy Court for the Northern District of Ohio (Toledo).
  • “A Singular Test for Automatic Perfection of Accounts and Payment Intangibles,” by Jonathan A. Marcantel, an associate professor of law at Charleston School of Law (Charleston, S.C.).
  • “You Get What You Give: An Analytical Approach to Critical Vendor Motions and How Bankruptcy Courts’ Treatment of Critical Vendors May Affect Their Chapter 11 Filings,” by former ABI Law Review Executive Articles Editor and recent St. John’s University School of Law LL.M. Graduate Alexander Cirkovic Koban, who most recently clerked for Hon. Jil Mazer-Marino of the U.S. Bankruptcy Court for the Eastern District of New York (Brooklyn).

ABI’s Law Review, published in conjunction with St. John’s University School of Law in Jamaica, N.Y., is among the most cited and respected scholarly publications in the bankruptcy community. Now in its 31st year, it has the largest circulation of any bankruptcy law review. Past issues of the Law Review have focused on a variety of timely insolvency issues, including chapter 11 reform, distressed sectors, single-asset cases, consumer bankruptcy, revised Article 9 of the Uniform Commercial Code and other topics.

Members of the press looking to obtain any of the articles from the Winter 2023 issue should contact John Hartgen at 703-894-5935 or jhartgen@abi.org.

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ABI is the largest multi-disciplinary, nonpartisan organization dedicated to research and education on matters related to insolvency. ABI was founded in 1982 to provide Congress and the public with unbiased analysis of bankruptcy issues. The ABI membership includes nearly 10,000 attorneys, accountants, bankers, judges, professors, lenders, turnaround specialists and other bankruptcy professionals, providing a forum for the exchange of ideas and information. For additional information on ABI, visit www.abiworld.org. For additional conference information, visit http://www.abi.org/calendar-of-events.

Judge Halts Voyager Digital's $1.3 Billion Sale to Binance.US

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A federal judge on Monday temporarily stopped bankrupt Voyager Digital from completing a proposed $1.3 billion sale to crypto exchange Binance.US, allowing the U.S. government more time to pursue appeals that challenge the legality of the deal, Reuters reported. The U.S. Attorney's Office for the Southern District of New York and the Office of the U.S. Trustee, the Department of Justice's (DOJ) bankruptcy watchdog, filed appeals in early March over a bankruptcy court's approval of the sale. They argued that the protections could rubber stamp crypto tokens that might be unregistered securities, as well as transactions that could be illegal under U.S. securities laws. U.S. District Judge Jennifer Rearden in Manhattan ruled Monday that the sale should be put on hold, overruling Voyager's argument that a delay could cause Binance.US to back out of the deal entirely. Binance.US and Voyager did not immediately respond to requests for comment late on Monday.

FDIC Is Probing Management’s Conduct in SVB, Signature Bank Failures

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A top US banking regulator has launched investigations into managers’ conduct in the Silicon Valley Bank and Signature Bank failures, Reuters reported. “It is worth noting that these two institutions were allowed to fail,” Martin Gruenberg, chairman of the Federal Deposit Insurance Corp., said in prepared remarks for a Senate hearing on Tuesday. “Shareholders lost their investment. Unsecured creditors took losses. The boards and the most senior executives were removed.” The FDIC stepped in and took control of the two lenders earlier this month as depositors yanked money from the two lenders. Gruenberg said the FDIC can probe and hold accountable the directors, officers, professional service providers and “other institution-affiliated parties” for losses tied to the banks, as well as any misconduct in the management of the banks. “The FDIC has already commenced these investigations,” he said.

Alex Jones Got Infowars Ad Revenue After Salary Cut in Bankruptcy

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Alex Jones started getting a share of Infowars advertising revenue weeks after the conspiracy website filed for chapter 11 and his salary was slashed, a now-ended arrangement only recently disclosed to the bankruptcy judge, WSJ Pro Bankruptcy reported. Judge Christopher Lopez of the U.S. Bankruptcy Court in Houston, who is overseeing both Infowars’s chapter 11 and Mr. Jones’s personal bankruptcy, said Monday that he was “troubled” by the revenue sharing arrangement. Bankruptcy rules forbid company owners or other outside parties from taking funds out of a business without court approval or notice to creditors. Mr. Jones’s lawyer, Vickie Driver, said her client now knows the arrangement wasn’t permitted and is returning funds he received. Infowars restructuring chief Patrick Magill, appointed after the company filed for bankruptcy protection last year, recently discovered some advertising revenue was split between Mr. Jones and another unnamed company employee. The two recipients have since agreed to return the $243,742 they received to bankrupt parent company Free Speech Systems LLC, according to court documents.

Cash-Strapped Biotech Firm Codiak Files for Bankruptcy Protection

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Codiak BioSciences Inc. said yesterday that it has filed for chapter 11 protection in the latest blow to the struggling drug developer's ambitions of making a COVID-19 vaccine, Reuters reported. The chapter 11 filing ends months of investor uncertainty after the company, which has been facing a cash crunch, raised going concern doubts and cut its workforce by 37% last year. The company said yesterday that it will cut an additional 34 jobs, bringing its total number of employees to 19, and expects to incur severance-related costs of about $1.1 million. Codiak previously said it would prioritize its COVID-19 vaccine development program that was funded by a global vaccine coalition, while halting development of two cancer drug candidates which were ready for mid-stage study. The company will also wind down a clinical trial of its drug for a type of bone marrow cancer, according to a filing yesterday. The $2.5-million funding by the Coalition for Epidemic Preparedness Innovations in July was aimed at an experimental vaccine that would target COVID-19 as well as other coronaviruses.

Deutsche Bank, Kingate Settle Over $1.6 Billion in Madoff Claims

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Deutsche Bank AG agreed to settle a lawsuit in which it accused a pair of offshore feeder funds of wrongfully backing out of a deal to sell the German lender $1.6 billion in claims against Bernard Madoff’s bankrupt investment advisory business, Bloomberg News reported. Lawyers for Deutsche Bank and the funds — Kingate Global Fund Ltd. and Kingate Euro Fund Ltd — filed a joint letter Thursday in federal court in Manhattan saying they’d struck a deal but didn’t disclose any terms. The Kingate funds, which funneled client money to Madoff’s firm for years before his Ponzi scheme collapsed in 2008, had agreed to sell the claims to Deutsche Bank Securities Inc. for 66 cents on the dollar in 2011, according to the lawsuit filed in 2019. Deutsche Bank claimed the funds got “sellers’ remorse” because the value of the claims had grown since they struck their purported deal. The suit was heading toward a trial after U.S. District Judge Edgardo Ramos in March 2021 denied the funds’ motion to dismiss the case.

Judge Curbs Puerto Rico Bondholders’ Claim to Electricity Revenue

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A federal judge curbed Puerto Rico bondholders’ rights to the electric revenue generated by its public power utility, the last major public corporation in the U.S. territory still in bankruptcy after its other public debts were restructured, WSJ Pro Bankruptcy reported. Judge Laura Taylor Swain ruled on Wednesday that utility bondholders’ collateral rights don’t extend to the current and future revenue of the Puerto Rico Electric Power Authority, known as Prepa. Bondholders were deemed to have a security interest only in certain funds in Prepa’s reserve accounts, which represent a fraction of their claims. Judge Swain said that bondholders have only an unsecured claim to the utility’s future net revenue, or its excess funds after operating expenses are paid. Further proceedings are needed to value that unsecured claim, which covers the future revenue that would have become payable to bondholders over the life of Prepa’s $8.3 billion in municipal debt, according to the decision.