Professional Documents
Culture Documents
1A. MULTIPLE DEBTORS IMPAIRED CLSASS REQUIREMENT -Section 1129(a)(10)s requirement for confirmation provides that if any class is
impaired under a plan, at least one impaired class must have accepted the plan.
Where a plan covers several debtors, is acceptance by one class sufficient, or must
there be an acceptance by a class of claims against each of the debtors? Held in The
Tribune Company, et al, 464 B R 126 (Bankr D Del 2011): compliance is required
by each debtor
Cir and S Ct. See Professor Charles Kuney's article in 76 Am Bankr L J.235 (2002)
and in the April 2010 Norton Journal of Bankr L and Prac.. Is such claim an
"interest in property" within the meaning of section 363(f), and if sold free and
clear, is the claimant entitled to adequate protection under 363(e) (and what
protection is required?) May such a free and clear sale be made pursuant to a
confirmed plan. Can a successor liability claim be discharged by a confirmation
order by virtue of section 1141(d) in conjunction with section 363(0? See
Miskowski, 415 F. 3d 501, and a 2005 Harvard Law Review article. After a
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bankruptcy case has been concluded, does the bankruptcy court have jurisdiction to
enforce the provision for a free and clear sale, and, if so, will it exercise its
jurisdiction?
8A. Post confirmation jurisdiction under 28 USC section 1334(b): Courts tend to
apply a close nexus test. See In re Metro-Goldman-Mayer Studios, Inc., 459 B R
550 (Bankr SDNY), which applied that test and held that juridiction was lacking
with respect to A post-confirmation transaction. Is that test too narrow.? The briefs
in that case were prepared by eminent counsel and should be examined.
9A. Allowability of filing class proofs of claim in bankruotcy cases. See Gentry V Siegel
as Liquidating Trustee for Circuit City Stroes, Inc. , 668 F.3d 83 (4th Cir. 2012) and
Bankruptcy Rule 7023. -May class action settlement proceeds be integrated with a
chapter 11 plan of reorganization? See Bally Total Fitness, Bankr. SDNY, April 7, 2009.
See also an article in 17 Norton Journal of Bankruptcy Law and Practice, Issue 6, page 793
(December 2008)
10A. Strip off and strip down of liens: May a chapter 7 debtor strip off a lien that
has no collateral value so as to render it an unsecured claim under section 506(a)? See
conflicting cases, including Pomilio, 425 B R 11 and Lavelle, 2009 WL 4043089. Both
cases consider Dusnup v Timm, 502 U S 410 holding that a chapter 7 debtor cannot strip
down a lien to the value of the collateral. See also, In re Cook, 432 BR 519 (Bankr D NJ
2010).
Also, Allowability of strip down and strip off of secured claims in chapter 13
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cases.. See In re Sarno, 463 B R 163 (Bankr D Mass 2011); and In re Miller, 462 B
R 421 (Bankr EDNY 2011)
11A. Third pary payment of legal fees: Where a fee for legal services provided to
a debtor in banruptcy is to be paid by a third party, must the fee be allowed by court
order in accordance with sections 330 and 331 before the payment may be made or
used by the attorney? See In re Holly Marine Towing, Incorporated, __F3d__, 2012
WL 32065 (7th Cir 2012).
M D Fla 2012), and if so, would such consolidation viola te a fifth amendment right of the
non-debtor and its creditors?
13A. The meaning of defalcation within the meaning of the section 523(a)(4)
non-dischargeability provision. There is a Circuit conflict. See In re Bullock,
__F.3d__,
16A. When do unknown future claims constitute claims within the meaning of
section 101(5)(A) (thereby discharging the debt giving rise to such claims)? See
Wright v. Owens Corning, 2012 WL 1759992 (3d Cir. May 18, 2012), and In re
Grumman Olson v. Frederico, 2012 WL 1038672 at *6 (SDNY March 29, 2012).
17A. JUDICIAL ESTOPPEL-- The elements and scope of the doctrine of judicial
estoppel -- Discuss the application of that doctrine.See Reed v City of Arlington,
650 F.3d 571, 572-573 (5th Cir. 2011). See also In re Adelphia Recovery Trust, 634
F.3d 678 (2d Cir. 2011) (barred a chapter 11 debtor in possession from bringing
fraudulent transfer claims). See also earlier decision in Adelphia of the Bankruptcy
and District Courts on judicial estoppel, and the later decision of the District Court in
Adelphia Recovery Trust v Key Bank, __B R __ (WDNY May 18, 2012)
20A. Releasesderivative liability: For a non-debtors claim against another nondebtor to be released, or its prosecution enjoined, by a chapter 11 plan, must the
entity whose claim is to be released be derivatively liable for the debtors liability to
the injured claimant? See In re Quigley, 676 F.3d 45 (2d Cir.2012), and expalaining
(reconciling) its earlier confusing decisions on derivative liability and subject matter
jurisdiction beginning with MacArthur. Consider also, Travelers v. Bailey, 127 S Ct
1199 (2007), where the Court accepted but did not decide the issue.
21A. Suits by trustees and DIPs effect of debtor misconduct: Consider the extent to
which a debtors participation with the defendant in misconduct bars a bankruptcy trustee or
debtor in possession from asserting against the defendant the claim arising from such
misconduct under the doctrine of in pari delicto. Does Reed v. City of Arlington, 650 F.3d
571 (dealing with judicial estoppel) establish a new approach to depart from in pari delicto?
Consider the decisions of the 2nd Circuit, relying on answers by the NY Court of Appeals to
certified questions, and of other Circuits. Also, consider whether the doctrine, as applied in
receivership cases, should be extended to bankruptcy cases. Is in pari delicto a defense to
standing to bring such a suit (and see other Circuits that reject Wagoner, holding that
in pari delicto is merely a defense to a trustees suit). See collection of citations and
discussion in Grede v. McGladrey & Pullen LLP, _BR_, 2009 WL 3094850 (9/29/09),
and also in section III(A)(2) of In re Food Management Group, (Banks SDNY January
23, 2008); In re TOCFHBI, Inc., 413 BR 523 (Bankr N.D. Tex 2009); In re The 1031
Tax Group, LLC, BR , Bankr SDNY 12/3/09; Nisselson, 1st Cir 2006, cert den 061160, Feb 23, 2007; Gregg, 2006 Annual Survey of Bankr L 117. See also In re Senior
Cottages of America, 8th Cir April 2007 (collusion of insiders with third parties to injure
the corporation did not deprive the corporation of standing to sue third parties); In re
Monahan Ford, 340 BR 1 (on "standing" at p 22 and discussing Wagoner rule). Should this
doctrine apply when a recovery could only benefit the creditor body, not the equity
owners?
no in In re SW Boston Hotel Venture, LLC, 2011 WL 5520928 (Bankr.D Mass. Nov 14,
2011). Numerous other cases are contra, including In re 203 North LaSalle Street, 246 B R
325 (Bankr. N D Ill 2000). Also consoider related questions, including whether a junior
creditors agreement not to oppose a senior creditors motion for adequate protection or to
enforce other provisions of an inter-creditor agreement are enforceable. Does section 1126
permit a transferee of voting rights to vote the claim or equity interest, where the transfer
has been effected by a sale of the vote, by a subordination agreement, by a subrogation
agreement, or another type of arrangement? See In re Avondale Gateway Center, 2011
WL 1376997 (D. Ariz).
26A. Use of bar orders, in bankruptcy cases limiting the time within which
claims must be filed, and barring (discharging) any claim that is not timely filed
within the the time allowed by the order. Consider requirements and limitations
applicable to such orders. See, The Tribune Co, 464 B R 126, 176 (Bankr D Del
2011).
27A. Stay relief and subject matter jurisdiction: -- Is stay relief required for a
debtor to appeal an order in a bankruptcy case? Cases are in conflict. See TW
Telecom Holdings, Inc., 661 F.3d 495 (10th Cir. 2011). If relief from the stay is
required, but not obtained, does the appellate court lack subject matter jurisdiction.
When is there a lack of jurisdictiuon or merely a violation of a procedural rule that
does not implicate subject matter jurisdiction
28A. Surcharging exempt property: May a debtors exempt property be
surcharged for the injury to the estate caused by the debtors wrongdoing or because
the debtor in essence has exempted more property than is allowed by law. Cases are
in conflict. See In re Malley (1st Cir 2012)
30A. Confirmation good faith requirement: The meaning of good faith for
purposes of the confirmation requirement in section 1129(a)(3). See In re Quigley,
53 BCD 170 (Bankr SDNY 2010).
uncurable default thereunder, prevent the assumption of the contract? See Escarent
Entities, __F.3d__, 2011 WL 1659512 (5th Cir 2011). See also Empire Equities
Capital Corp., _BR_ (Bankr SDNY 6/3/09). Consider the impact of the 2005
amendment t section 365(b)(2)(D) and 365(b)(1)(A). See In re Escarent, 2011 WL
1659512 (5th Cir. 2011)
A. Director and Officer insurance policies: Are D & O policies or the proceeds
of such policies property of the estate within the meaning of section 541? May
insurance proceeds be advanced to directors or officers for litigation defense costs?
See numerous circuit cases, and In re Downey Financial Corp., 2010 WL 1838565
(Bankr D Del); In re Mila, Inc., 52 BCD 210 (9th Cir BAP January 29, 2010); In re
World Health, Bankr. D Del, June 7, 2009
F.3d 253 (5th Cir. 2010). Consider also In re Bogdan, 414 F3d 507 (4th Cir 2005); Grede v
Bank of NY , 598 F.3d 899 (7th Cir. 2010)
G. Section 363(b) sales: What is the standard for a sale pursuant to section
363(b) after the decisions in Chrysler (2d Cir.) and GM (Bankr. SDNY)? See also, In re
Gulf Coast Oil Corporation, 404 B R 407 (Bankr S D Tex 2009). Consider an opinion by
Bankruptcy Judge Randolph Haines issued in the past two years.
(b) Discovery. ---A further issue is whether documents and communications made
or exchanged during a mediation may be discovered, or precluded to protect the
confidentiality of the mediation. See In re Tribune Co., 54 BCD 84 (Bankr D Del 2011)
(limited discovery permitted).
I.
failure to perform violate the automatic stay? During that pre-confirmation period, does
the chapter 11 debtor use the contract within the meaning of section 363 and is the nondebtor party entitled to have adequate protection of its contract rights under section
363(e)?
337 F.3d 314, Eubanks, 2004 WL 2256015, DeLeon 321 F.3d 1289, and Cheng, 308 B.R.
448. See Parket v. Werdys, 9th Cir. April 15, 2004, questioning Burnes, 291 F. 3d 1282. See
also, Wachovia v. Eastman Kodak, 456 F3d 1277 (11th Cir 2006), cert den 127 S Ct 836
(2006) (the res judicata effect of a confirmation order did not preclude a subordinated
creditor's fraud suit against the senior creditor). There may be a circuit conflict.
5. END OF POST-CONFIRMATION JURISDICTION: When does postconfirmation jurisdiction end? - Revisiting Zerand-Bernal, 23 F.3d 159 (7th Cir. 1994),
and In re Conseco, 2004 WL 2913628. What is the test for the allowable scope of
postconfimiation jurisdiction? See Jamaica, 458 F3d 92; and In re Heritage Organization,
454 BR 353 (Bankr N D Tex 2011). See discussion of retention of jurisdiction in the plan
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held generally to override state law rights of creditors despite Butner and
Raleigh v. Illinois. See also Noland and C, F and I, 518 U.S. 213. See also,
14
June 10, 2004; Urban Broadcasting, 4th Cir., March 11, 2005. See
also Fight v. Univision of Virginia, Inc., In re Urban
Broadcasting, 401 F.3d 236 (4th Cir. 2005). Consider whether a
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10.
American Bridge, 52 BCD 243 (1st ir. March 10, 2010). Exxon, 125 S. Ct. 1517
(May 2005) limits Rooker- Feldman severely. What survives after Exxon, 125 S.Ct.
1517 (2005)? See also in re Knapper, 3rd Cir. May 24, 2005; Bridgewater, 346 F.
3d 27; Lopez, 9th Cir BAP April 2007.
12. ENVIRONMENTAL CLAIMS ---Do post-petition
environment clean up costs have administrative expense priority? Many authorities.
Consider G-I Holding, Inc, 308 B.R. 196 (Bankruptcy D.N.J 2004).
13.
preemption of state law. See Sherwood Partners v. Lycos (9th Cir) and numerous
other cases in Sup Ct and Circuit courts. See also In re Miles, 430 F.3d 1083 (9th
Cir. 2005); Watters v Wachovia Bank, 05-1342, US Sup Ct April 11, 2007; Hills,
Against Preemption, 82 NYU L Revl (2007). See also 63 The Business Lawyer
703 (Feb 2008) Does the S Ct's preemption test apply to provisions of the Bankr
Code?
14.
article written by Professor Susan Block-Lieb in the early 1990s. See also the
pleadings and briefs listed after 126 S CT 2890; In re Valley Food, LLC, 400 B R
724, holding no and collecting cases on split of authority; In re Lionel, 29 F. 3d 88
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(2d Cir 1994); Cuyahoga, 980 F.2d 110. Does Stern v. Marshall, 130 S Ct 2594, bear
on whether a bankruptcy judge may exercise supplemental jurisdiction?
15.
67 F.3d 1394, Zale Corp., 62 F.3d 746, Western Real Estate Fund, 922 F.2d 592 (modify
on other grounds 932 F.2d 898), Continental Airlines, 203 F.3d 203, 214. See also
Brubaker, Bankruptcy Injunctions and Complex Litigation: A Critical Reappraisal of
Non-Debtor Releases in Chapter 11 Reorganizations, 1997 University of Illinois Law
Review 959. See also Metromedia Fiber Network, Inc.,416 F3d 136 2d Cir. 2005); and In
re Washington Mutual, , 2011 WL 57111 (Bankr. D Del January 7, 2011). See Professor
Brubaker's article in Bankruptcy Law Letter issue in or about 2005; and Bussel & Klee,
Recalibrating Consent, 83 Am Bankr L J 663 at 725. Also, consider the impact of In re
Johns Manville, 517 F.3d 52 (2d Cir 2008), appeal pending in S Ct , argued 3/31/09.
May a debtors duty to indemnify or to contribute to a third party be a basis for
bankruptcy jurisdiction to enjoin actions by injured persons against such third party. See
In re FairPoint, 452 BR 21 (SDNY 2011), discussing the 2d Circuits decision on remand
in Manville III. See also In re Grace, 591 F.3d 164 (3d Cir); and in re Camp Arrowhead,
451 BR 678, at 697-702. (Bankr. W D Tex 2011). Also, consider any Stern v Marshall
implication
347, and on appeal 416 F3d 609 (7th cir 2005); US Bank, 2005 WL 563214; Bank of
NJ, 2005 WL 670528; Grubs, 319 BR 698. The court was negative on using a multi-
factor test in In re SubMicron, 432 F.3d 448, 456 (3d Cir 2006); similar view in 3rd
Cir opinion in Owens corning, 419 F 3d 195, 2010-2011; Highland, __BR__, 2011
WL 3348223 (Bankr D Del); Friedmans Leasing, 452 BR 512 (Bankr D Del 2011).
Also , consider whether there are any considerations based on Stern v Marshall, 130
S Ct 2594 (2011).
17B MITIGATION DUTY UPON REJECTION: Consider whether a
lessor has a duty to mitigate rejection damages on rejection of a real property lease
and a personal property lease, and whether state law of mitigation is relevant. See Giant
Eagle v. Phar-Mor, Inc., 528 F.3d 455 (6th Cir 2008), cert den 2009.
18.
Although debtor are not compelled to honor such provisions, will damage claims
be allowed where the debtor has breached such provision? Cases are split. See,
Chemtura, 439 BR 561, 596 (Bankr SDNY 2010); Calpine, 365 BR 392, and on
appeal, 2010 US Lexis 96792; Solutia, 379 BR 473; Premier Entertainment, 2010
Bankr Lexis 2994. Is the wording of the applicable instrument controlling?
21. DISCHARGE OF WILFUL INJURY CLAIM ---For a
debt to be for a willful and malicious injury so as to be non-dischargeable, must
the debtor have acted deliberately and intentionally to injure a person, or is it
enough if the debtor tended to do the act that to the injury. See Markowitz, 190 F. 3d
455 (6th Cir. 1999); Moore, 357 F.3d 1125 (10 Cir. 2004) analyzing Geiger, 118
S.Ct. 974 (1998); Dincan, 448 F3d 725. Consider In re Bucci (circuit 2007 or 2008,
cert denied 2009) on whether an ERISA trustee is a fiduciary within the meaning of
523(A(4)'s exception from the discharge there may be a circuit conflict.
22. TRADE SECRETS/BUSINESS RELATIONS Does
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23B . ASSIGNMENT FREE OF USE AND OTHER RESTRICTIONS --Can a chapter 11 debtor-tenant assign a shopping center lease without incorporating
the use restrictions of the lease? Consider conflicting provisions in section
365(b)(3)(c) and 365(f)(1). See In re Trak Auto, 4th Cir. April 22, 2004. In that
connection, cover whether contracts or leases may be assigned but with provisions of
no value to the non-debtor party excised.
23D. CROSS-DEFAULT PROVISIONS: If two different contracts contain "crossdefault" clauses, can the debtor assume one contract and reject the other, or, will the
rejection trigger a default that must be cured in order to assume the other contract?
Can a debtor "cherry pick" favored leases in a group while rejecting others? What are
the policy issues? What about plain language since cross default clauses are not
among the expressly prohibited ipso facto clauses? Does the potential impairment of
365 rejection rights justify ignoring the clause? What about other provisions that
practically make it difficult to exercise 365 powers? See In re Convenience, 2002
WL 230772; In re Pitt, 233 BR 837; Wheeling-Pitt, 54 BR 772; Sambos, 24 BR
755Railway Reorg, 133 BR 578; Liberty Mut, 2005 WL 1842375 (1st Cir).
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in advance to vote for plan or the DIP might agree to propose specific plan terns (or a
DIP lender may require the DIP to propose a plan to which lender agrees). Review
different contexts - e.g. a pre-petition provision, a provision entered postpetition as a settlement of action or lease issue, a provision in agreement with court
approval such as DIP financing order. Look at bankruptcy crimes issues, solicitation
& voting issues, DIP fiduciary duty issues and court control issues.
23F. DIRECTORS AND OFFICERS PERSONAL RECORDS. Is a
director or an officer required to produce non-privileged personal financial records
relevant to a trustees avoidance proceeding? See In re Sanbrino, 441 BR 562
(Bankr W D Tex 2010), an exhaustive opinion
24. LIMITS OF POLICE POWER STAY EXCEPTION ---What is police or
regulatory power within section 362(b), and what are the limits to the police power
exception to the automatic stay? Is financial impact a critical factor? What about
governmental motivation? Does the section 525 anti- discrimination provision factor
into the analysis? See In re Go West Entertainment, Inc., (Bankr SDNY May 14,
2008). See also Mirant, 5th Cir. See also, City and County of San Francisco, 433
F.3d __. See also Bd of Governors v MCorp, 112 S Ct 459 (1991). Consider FCC v
NextWave, 123 S Ct 832 (2003).
25. ANTI-INJUNCTION AND DECLARATORY JUDGMENT ACTS
IMPACT. Consider the extent t which hose acts limit he authority of the Internal
Revenue Service to collect taxes owed by the debtor. See In re Berkebile, 54 BCD 94
(Bankr W D Penn. Feb 17, 2011
27 SERIAL FILINGS: Are serial bankruptcy case filings permitted, and when
should a bankruptcy case be dismissed as an attempt to modify an earlier
confirmed plan of reorganization. See 1127(b). Cases collected in In re 1633
Broadway Mars Restaurant, Corp.,
BR
22, 2008). Also, consider whether Bankr Rule 9024 is a basis to modify a
confirmation order because of unforeseen circumstances. See also Northtown
Properties,
consider whether filing a proof of claim waives the right to trial by jury as to a
claim that is not within the "claims allowance process," as discussed in
Connecticut Natl Bank v. Germain, 2d Cir., and also the test for whether a claim is
outside that process. The claims allowance process is discussed in Supreme Court
opinions.
29. DISCHARGE OF CLAIMS OF "KNOWN CREDITORS" Analyze who is a
"known creditor" and thus bound by the discharge injunction, and the rights of
"known creditors" and "unknown creditors." See In re Arch Wireless, Inc., 534 F.3d
76 (1st Cir 2008). See also, Grumman Olson v. Frederico, 2012 WL 1038672 (SDNY
March 29, 2012) and Wright v Owens Corning, 2012 WL 1759992 (3d Cir. May 18,
2012.
30. REOPENING BANKRUPTCY AUCTIONS. May a bankruptcy
auction be reopened to consider accepting a higher bid? See In re Bigler, 2010
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31C. WHO OWNS THE CLAIM: THE ESTATE OR NON- DEBTORS: Once a
bankruptcy case is commenced, claims owned by creditors often may be asserted
only by the trustee or DIP, unless the creditors have an independent injury. The test
is often confused, See In re Seven Seas, _F3d_, 2008 WL 836400 (5th Cir.). In re
Teknek, F3d , 2009 WL 1139333 (7th Cir April 29, 2009, analyses the trustee's sole
right to assert "general claims" and a creditor's right to assert "personal claims." See
In re Teknek, 563 F3d 639,645-46 (7th Cir. 2009). What is the tgest for whether a
claim may be asserted by the trustee or by creditors or securityholders indiviually?
See Ahcom, Ltd v. Smeding, 623 F3d 1248 (9 th Cir 2010). See cases hlod that a
24
15
credior ,may assert a claim only if the creditors suffered particularized injury, and
if not, then such a claim may be asserted only by the trustee.
Where securityholders bring securities law claims against directors and
officers, do they assert their own claims or are they improperly asserting claims
that may only be asserted by the trustee? If individual claims of the security
holders, frequently asserted in class actions, does confirmation discharge such
claims?
See also a SDNY decision in Enron, reversing the B Ct, holding that Enron's
shareholders, who were to receive shares of another corporation in a pre-petition
aborted merger, had their own claims.. See also, Official Committee v. Halifax Fund,
493 F.3d 82 (2d Cir. 2007) (Creditors did not own independent claim to pursue
equitable subordination - such claims were derivative of the debtor, not direct.).
Regarding who owns misrepresentation claims against directors and officers, see
Torch, Liquidating Trust, 561 F.3d 377 (5th Cir. 2009). Also consider the general
requirements for standing to sue.
31D. RELIEF FROM A MISTAKE: Should a bankruptcy
court grant relief by permitting suit against another party after the statute of
limitations has run where the wrong party was mistakenly first sued in a timely
suit? See Global Crossing, BR , (Bankr SDNY , April 8, interpreting F R Civ P
15(c)(incorporated by BR 7015) and distinguishing earlier case law. Also consider
the extent to which relief may be granted pursuant to FR Civ P 60(b), incorporated
by BR 9024 where there has been non-compliance with a provision of the
Bankruptcy Code or of a Bankruptcy Rule. For example, whether 60(b) is a basis
for relief more than 180 days after confirmation, despite the time limit in 1144.
32.
anti- bankruptcy clauses work? Can the debtor enter into a binding agreement not to
file bankruptcy, or grant an executory waiver of the automatic stay? See 195 BR
431; 184 BR 686; 160 BR 870; 108 BR 86; 189 BR 599; 167 BR 817; and
Sprayregen, November, No 5, Journal of Bankruptcy Law and Practice. Can a court
hearing a collection case enjoin the debtor from filing bankruptcy? See
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McDonald, May 2007 ABI Journal 14 discussing Esopus Creek. (Ms McDonald
holds an LL.M. in Bankr degree). Are there any corporate or other devises that
can operate to preclude a bankruptcy filing? In connection with this topic,
consider other pre- petition waivers, such as the pre-petition waiver of the right to
reject an executory contract under 365 discussed in Trans World Airlines, 261 BR
103 (Bankr D Del 2001), and prepetition waiver of the automatic stay. See also
Bussel & Klee, Recalibrating Consent, 83 Am Bankr L J 633 at 702
33.
Must pre- confirmation settlements comply with the absolute priority rule? See
Iridium, 478 F.3d 452; Iridium, 141 BR 13; Aweco, 725 F. 2e 293; Motorola, 478
F.2d 452. Also consider In re DBSD, 634 F.3d 79 (suggests that gifting outside
of a confirmed plan may be permissible). In order to obtain the consent of a junior
class of creditors or the equity class to a proposed plan of reorganization, it is
sometimes necessary for a class of senior creditors to reallocate (give up) to the
junior or equity class part of the plan distribution negotiated for the senior class.
This topic involves cases dealing with whether reallocation is permissible. See
World Health, Bankr. D. Del. July 7, 2006; S.P.M. Manufacturing Corp., 984 F.
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Circuit on litigation tactic as not being a chapter 11 purpose, and thus not for a
chapter 11 purpose. Does In re 68 West 127th Street LLC, 285 BR 838 (Bankr
SDNY) adopt a more meaningful standard for dismissal of single asset real
estate cases that is different than a lack of good faith, and is geared to whether
there is a chapter 11 purpose for the case?
35. REQUIREMENT OF "GOOD FAITH" IN
PROPOSING A CHAPTER 11 PLAN. What is the meaning and scope of
section 1129(a)(3). Dee In re Kane, 843 F.2d 636. See also In re Quigley Co.,
53 BCD 170 (Bankr SDNY Sept 8, 2010); In re Chemtura, 439 B R 531, 591
(Bankr. SDNY 2010)
36A. ALLOWANCE OF PUNITIVE DAMAGES: Are punitive damages
allowed as a claim in chapter 11 ? Consider Hillsborough, 247 BR 510; and
Genisis, 266 BR 591. See also Supreme Court's 2007 decision in Philip Morris v.
Wills.
37.
38.
the current test for substantive consolidation. See Owens Corning, 3rd Cir. 2005 and
District Court. See in re World Access, Inc., restating the East Group test 934 F. 2d
245. (In writing on this topic, assume that the bankruptcy court has the power to order
substantive consolidation.) For a new look at substantive consolidation, see
Cyberco Holdings, Inc., 431 BR 404 to 435 (Bankr W D Mich 2010)
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39.
connection with the discharge in chapter 11 cases, when does a plan provide "for
the liquidation of all or substantially all of the property of the estate" within the
meaning of Bankruptcy Code 1141(d)(3)(A)? Is a "supervised divestiture"
different from a "wholesale liquidation"?: See Financial Security Assurance,
116 F.3d 790, 803 (5th Cir. 1997); Penn Central, 944 F.2d 164, 169 (3d Cir.
1991); River Capital, 155 B.R. 383, 387 (Bankruptcy ED Virginia 1991); First
American Health Care, 220 B.R. 720, 726 Bankruptcy St. Georgia 1998);
Mahoney, 289 B.R. 285, 303; Wood, 135 B.R. 407, 410 (Bankruptcy D.
41.
What is the test for reasonably equivalent value in exchange for the transfer,
within the meaning of section 548(a)(1)(b)(I)? See In re TOUSA, __BR__, 444
BR 613 (S D Fla), reversd In re TOUSA, __F.3d __ (11th Circuit May 2012)
42.
debtor who operated a ponzi scheme recoverable in the bankruptcy case of the
person who committed the fraud? See In re Bayou, 396 B R 810 for extensive
discussion, and several Madoff and subsequent opinions
43.
bankruptcy court always abstain under 28 USC 1334(c)(1) where the issue involves
a state's police and regulatory power. What is the scope of 362(b)(4)? Is the
"Younger" abstention test, as presently interpreted, relevant to the issue? See In re Go
West Entertainment, Inc., BR (Banks SDNY 2008).
47. "INSIDERS": Who is an "insider" under the non-specific (the socalled non-statutory) portion of 101(31), which begins with the word
"including"? See Lucent/Winstar (3d Circuit (2008). Consider using the arms
length test applied by the S Ct in Jones v Harris, 2010 WL 1189560
48.
for whether "success fees" are allowed in bankruptcy cases. Consider whether
they should be allowed, whether they should be pre-approved, and the 330 standard
to evaluate them. See Northwest Airlines, 382 BR 632.
49.
an oversecured creditor determined on the basis of the contract rate or in the amount
decided in the court's discretion. See In re Urban Communicators, 379 BR 232
(Bankr SDNY 2008). Does Sexton v Dreyfus, 31 S. Ct 256 (1911) provide the
answer? Also consider Ron Pair, 489 US at 24 and Rake v Wade, 508 US at 468.
See also Milham, 141 F.3d at 423, where the court stated that post-petition interest
is not based on contract, citing Ron Pair. Also, consider Till, 124 S Ct 1951 (2004)
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53.
fixing of liens under Bankruptcy Code 522(f) and particularly the law on
impairment of exemptions. Examines whether the law has gone in a new direction
and whether its direction is compatible with the theory and goals of bankruptcy
law. See In re Brinley, 403 F.3d 415 (6th Cir. 2005).
54.
54B. DISGORGEMENT OF ADMINISTRATIVE EXPENSES ---Are
professional fees or other administrative expenses that have been paid subject to
disgorgement if the debtor becomes administratively insolvent and the claimant
received more than pro rata payment?
55.
56.
Footstar, 323 BR 566; Indyke, April 2007 Journal of Bankr Law and Practice 2.
59.
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66. Ownership of the reorganized debtor by old equity New Value. Consider
new analysis in Red Mountain, 448 BR1 (Bankr D Ariz) of section 1129(b)(2)(B)(ii)s
cram-down phrase: will not receive or retain under the plan on account of such junior
claim or interest any property. Consider this in the context of a plan under which the
debtors exclusive plan-filing period has expired.
67. SECTION 546(e) SETTLEMENT DEFENSE: Revisit developments in the
scope of the securities settlement defense under section 546(e), in light of Enron,
__F.3d__, 2011 WL 2536101 and the extensive analysis of In re MacMenamins Grill,
Ltd, 2011 WL 1549056 (Bankr SDNY). This defense is commonly asserted when a
trustee or DIP brings a constructive fraud proceeding to recover amounts paid before
bankruptcy by a debtor corporation (both publicly and privately held shares) to
shareholders in redemption of their stock. Recovery is also sought from lenders who
provided the funds to pay for the corporations purchases of the shares. Is a purchase or
sale of a security required for the settlement payment defense of 542(e) to be available?
Held no in a 2-1 decision in In re Enron Creditors Recovery Trust, 651 F.3d 329 (2d Cir
2011), holding that a payment to redeem commercial paper is subject to the defense)
68. Scope of the governmental enforcement exception from the automatic stay under
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362(b)(4). Consider Califano, 453 B R 404 (D.Nev. 2011) and cases cited in Matter of
Scott Housing Systems, 91 BR 190 in note 2 at 193, and In re Nortel, 2011 WL 1154225
(D Del)
70. May a mechanics lien be avoided as a constructive fraud under section 548(a)(1)(B)
or as a preference under section 547. See Desert Fire, 434 B R 716 discussing varios issues
See also, an October 2011 ABI Journal article
71. What are claims under section 101(5)(B). Determine the meaning and scope of
section 101(5)(B). Consider various equitable remedies, including whether enjoining the
breach of a non-competition agreement gives rise to a claim under section 101(5)(B).
See In re Stone Resources, inc, 2011 WL 4017925 (E D Pa.), revg bankr ct, and holding
that a pre-petition preliminary injunction is not a claim , and thus not subject to the
automatic stay
77. Section 502(c) provides for estimation of certain contingent and unliquidated claims.
Is the bankruptcy courts estimate a final determination of the claim, or may the claimant
33
proceed with litigating the claim to a final judgment? In a chapter 11 case, if the judgment
exceeds the estimate, does the claimant receive an additional distribution under the
confirmed plan at the time of distribution or even after consumation of the plan? Also,
consider 28 USC 157(b)(2)(B) providing that estimation is a core proceeding except for
certain tort claims and the impact of Stern v Marshall on the process. As to finality, see
Chateaugay, 2nd Cir, among others
79. Enforceability of pre-petition waivers of the automatic stay. See a 1993 ABI L Rev
article.
82. The significance of the date of commencement of the bankruptcy case in resolving
issues that arise under the Bankruptcy Code. Consider section 541. See Burgess v. Sikes,
438 F.3d 493 (5th Cir. 2006) (en banc, and strong dissent); see also Segal v Rochelle, 382
U S 375 (1966); In re Myers, 616 F.3d 626 (7th Cir 2010). This topic should track the
development of the case law since 1966.
83. Developments under section 1115 for individual debtors. See the following cases in
2010 Westlaw: Nos 1428266; 1486035; 1760282; 1753795. See also 445 BR 885; 447 BR
445; and 445 BR 816
84. Are rights of first refusal unenforceable restraints on assignment; ipso facto clauses.
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See the following cases: 77 BR 349, 352; 359 BR 65; 61 BR 495; 190 BR 958; 139 F.3d
702; 241 BR 17; 226 BR 586; 756 F.2d 1043; 1943 BR 703; 284 BR 111; and 118 BR 432
85. The interplay of SEC receiverships and bankruptcy. See SEC v Byers, 609 F,3d 87.
Also consider any implication of section 1141(d)(6)(A), and a law review on that topic
byBilly Hilbold in ABI L Rev
89. What constitutes value for the purpose of sections 547, 548 and 550
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