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Boy Scouts Defeat Appeals of Sex-Abuse Settlement Plan

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A federal judge backed the Boy Scouts of America’s chapter 11 plan to settle sex-abuse lawsuits that sent the youth group to bankruptcy, bringing it closer to ending more than three years of court protection, WSJ Pro Bankruptcy reported. U.S. District Judge Richard G. Andrews of the U.S. District Court in Wilmington, Del., upheld the youth group’s settlement plan for more than 82,000 claims of childhood sexual abuse, rejecting appeals from some victims and insurance companies following its approval by a bankruptcy court last year. Yesterday’s ruling puts the Boy Scouts on the cusp of ending the largest-ever bankruptcy case resulting from allegations of childhood sexual abuse and bolsters the use of chapter 11 to resolve mass litigation. The chapter 11 plan is expected to resolve the Irving, Texas-based group’s liability for decades of childhood sexual abuse and settle claims against affiliated local councils and the civic and religious groups that sponsored scouting activities. Local councils, sponsoring groups, insurance companies and the Boy Scouts put together a $2.5 billion fund for victim compensation. The bankruptcy plan makes it possible for abuse claims to be administered and paid in “an equitable process,” according to the judge’s ruling. Judge Andrews said that nearly every creditor constituency supported the chapter 11 plan, a “commendable result for such a lengthy, contentious and emotionally charged proceeding.” The Boy Scouts would leave chapter 11 low on cash but retaining much of the property held by its local councils that makes up the majority of the organization’s wealth.

FTX's Bankman-Fried Charged with Bribing Chinese Officials in New Indictment

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U.S. prosecutors on Tuesday unveiled a new indictment against Sam Bankman-Fried, accusing the founder of now-bankrupt FTX cryptocurrency exchange of conspiring to pay a $40 million bribe to Chinese government officials, Reuters reported. The new bribery conspiracy charge adds the pressure on the 31-year-old former billionaire, who now faces a 13-count indictment over the November collapse of FTX. Prosecutors had previously accused Bankman-Fried of stealing billions of dollars in customer funds to plug losses at his Alameda Research hedge fund, and orchestrating an illegal campaign donation scheme to buy influence in Washington, D.C. Bankman-Fried is expected to be arraigned on Thursday in Manhattan federal court. U.S. District Judge Lewis Kaplan will also consider modifications to his $250 million bail package. The indictment said Bankman-Fried ordered the $40 million cryptocurrency payment to a private wallet from Alameda's main trading account, to persuade Chinese authorities to unfreeze Alameda accounts with more than $1 billion of cryptocurrency.

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.

Binance and Founder Changpeng Zhao Sued by CFTC

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Binance and its founder Changpeng Zhao are being sued by the Commodity Futures Trading Commission for numerous alleged violations of the Commodity Exchange Act and CFTC regulations, the Associated Press reported. Binance’s former chief compliance officer, Samuel Lim, was also charged with aiding and abetting Binance’s violations. In its complaint, the CFTC claimed that cryptocurrency exchange giant Binance “allegedly chose to knowingly disregard applicable provisions of the CEA while engaging in a calculated strategy of regulatory arbitrage to their commercial benefit.” For example, Binance did not require customers to provide any identity-verifying information. It also communicated with U.S. customers using a messaging platform that automatically deleted written communications. The CFTC filed the complaint Monday in the U.S. District Court for the Northern District of Illinois. It is seeking disgorgement, civil monetary penalties, permanent trading and registration bans, and a permanent injunction against further violations of the CEA and CFTC regulations.

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.

Texas Regulator Appeals Decision Reversing ’21 Blackout Costs

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The Public Utility Commission of Texas urged the Texas Supreme Court to overturn a court ruling that found the agency overstepped its authority by allowing power prices to soar during the state’s deadly 2021 winter storm, Reuters reported. The PUCT defended its actions during the storm in an appeal filed Thursday, writing that regulators made “split-second decisions” during a “life-or-death situation” that may not be popular, but were necessary to address a market failure. Attorneys for the regulator said the recent ruling against them has “thrown Texas’s electricity and associated markets into confusion.” Last week a state appeals court stunned the Texas power market by siding with power generator Vistra Corp. which claimed in a lawsuit that PUCT had exceeded its authority by pinning prices to $9,000-per-megawatt-hour for days during the February 2021 storm, resulting in billions of dollars in overcharges to consumers. The decision reversed a pair of orders by the commission.

J&J Fails to Win Rehearing of Talc Unit’s Bankruptcy Case

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Johnson & Johnson will seek the Supreme Court’s review after a federal appeals court declined to revive the company’s bid to use chapter 11 bankruptcy to freeze nearly 40,000 lawsuits linking its talc products to cancer, WSJ Pro Bankruptcy reported. J&J said that it would turn to the nation’s highest court after judges on the Third U.S. Circuit Court of Appeals in Philadelphia voted Wednesday against having the entire appellate court reconsider a January ruling by a panel of judges dismissing the chapter 11 case of J&J subsidiary LTL Management LLC. J&J created the LTL subsidiary in 2021 and placed it in chapter 11 to move mass talc-injury lawsuits the business faced to bankruptcy court for resolution. While the parent company didn’t file for chapter 11, LTL’s bankruptcy filing opened a path to freezing the talc lawsuits against its affiliates, including J&J itself. Other profitable companies have used the same strategy, known in legal circles as the Texas Two-Step, to try to address mass cancer litigation. Wednesday’s ruling means J&J’s hopes for reviving its talc subsidiary’s chapter 11 case now depend on the U.S. Supreme Court, which takes only a small fraction of the petitions it receives.

FTX to Collect $404 Million in Proposed Deal With Modulo

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FTX Group will recover about $404 million that its disgraced founder Sam Bankman-Fried allegedly transferred to the investment fund Modulo Capital, according to a proposed bankruptcy settlement made public yesterday, Bloomberg reported. The agreement adds to the slowly growing pot of money FTX has been trying to collect since the crypto firm filed bankruptcy last year. Modulo Capital, managed by Xiaoyun “Lily” Zhang and Duncan Rheingans-Yoo, got $475 million last year before FTX collapsed into bankruptcy amid fraud allegations, according to the settlement, filed Wednesday afternoon in federal court in Wilmington, Delaware. Modulo has no other money it could use to repay the funds, FTX said. The proposed settlement avoids an expensive lawsuit in which Modulo would fight FTX for the cash, according to court records. FTX said the deal is worth $460 million because it would bring in $404 million in cash and require Zhang and Rheingans-Yoo to drop claims they have against the company for $56 million. The agreement must be approved by Bankruptcy Judge John Dorsey.

SVB Financial Must Wait to Get Back $2 Billion from FDIC

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The former owner of Silicon Valley Bank, seized earlier this month by regulators, will need to wait, possibly for several months, to know if it can get back about $2 billion in cash it would need to repay bondholders and other creditors, Bloomberg News reported. SVB Financial Group won provisional court approval Tuesday to spend only a fraction of the cash the company claims federal regulators must return. What happens with the rest of the money will need to be decided in the coming months, with lawyers for bondholders owed more than $3.3 billion saying they are concerned that the Federal Deposit Insurance Corp. will try to keep the cash. The FDIC’s decision to lock down the $2 billion “creates jeopardy” in the bankruptcy case, said Tom Lauria, a lawyer representing a large bondholder, Appaloosa LP. “It seems to be a more urgent issue than a latent one in the context of this case,” Lauria told Bankruptcy Judge Martin Glenn during a hearing in federal court in Manhattan. Under FDIC receivership rules it can take months for the agency to decide whether the money will be returned and then years if that decision is appealed, lawyers said during the hearing.