By Eric Daucher (US), Jason Blanchard (US), Michael Berthiaume (US) and Emily Hong (US) on Posted in UncategorizedOn April 19, 2023, the US Supreme Court unanimously held that Section 363(m) of the Bankruptcy Code is not “jurisdictional,” and therefore does not limit a court’s authority to hear an appeal of a bankruptcy sale order (even if it does limit a court’s ability to void the sale itself). This ruling resolves a circuit… Continue Reading
By Scott Atkins (AU), Eric Daucher (US), Dr. Kai Luck (AU) and Francisco Vazquez (US) on Posted in Australia,USWith the influx of insolvency cases expected on a global basis in coming months as government support measures are wound back, now is an opportune time for businesses to consider the extent of their potential exposure if a subsidiary liquidates. In particular, can losses be isolated within a liquidating subsidiary, or will there be a contagion… Continue Reading
By Eric Daucher (US) on Posted in USEarlier today, in Czyzewski v. Jevic Holding Corp., the Supreme Court put an end to “structured dismissals” that allow a debtor to leave bankruptcy while circumventing the Bankruptcy Code’s creditor payment priority scheme. A Chapter 11 debtor generally has three options for exiting bankruptcy: (1) a confirmed plan of reorganization (or liquidation); (2) conversion to… Continue Reading
By Eric Daucher (US) on Posted in USFraudulent transfer statutes were enacted to protect creditors from improper depletion of a debtor’s assets. They generally accomplish this goal by allowing creditors (or a bankruptcy estate representative) to avoid transactions that are either actually or constructively fraudulent as to creditors, and to recover some or all of the proceeds of the transaction. For example,… Continue Reading
By Eric Daucher (US) on Posted in USOn January 14, 2015, the Supreme Court of the United States heard oral argument in Wellness International Network, Limited v. Sharif, a case that gives SCOTUS the opportunity to finally clarify the constitutional limits of bankruptcy courts’ decision-making power raised by its 2011 decision in Stern v. Marshall. But as we saw with last year’s… Continue Reading
By Eric Daucher (US) on Posted in USCorporate officers and directors who want to understand when a bankruptcy court may second-guess their decisions if their company fails need look no further than the Delaware bankruptcy court’s recent decision in Gavin v. Tousignant (In re Ultimate Escapes Holdings, LLC). Failed Business, Failed Merger Ultimate Escapes was formed in September 2009 to operate a… Continue Reading
By Eric Daucher (US) on Posted in USOn June 9, 2014, the Supreme Court handed down a decision in Executive Benefits Insurance Agency v. Arkison—a case that was expected to answer fundamental questions about the constitutional limits of bankruptcy courts. The case had the potential to either dramatically reshape, or strongly reaffirm existing fraudulent transfer litigation law and practice. Instead, in a… Continue Reading
By Eric Daucher (US) on Posted in USSince the Supreme Court of the United States shook up the bankruptcy litigation world with its decision in Stern v. Marshall, bankruptcy practitioners have been finding “Stern problems” everywhere they look. A straightforward decision in Carney v. CitiMortgage, Inc., however, reminds us that, as broad as Stern may be, bankruptcy courts retain full authority to… Continue Reading
By Eric Daucher (US) on Posted in Bankruptcy CourtsAfter January 14’s oral argument in Executive Benefits Insurance Agency v. Arkison, the big question appears to be not whether the Supreme Court will scale back bankruptcy court power over fraudulent transfer actions, but how drastic the new limitations will be. Our previous discussions of Arkison appear here and here. Background The facts of Arkison are… Continue Reading
By Eric Daucher (US) on Posted in USAs we discussed in a recent post on Executive Benefits Insurance Agency v. Arkison, the United States Supreme Court is preparing to address the constitutional limits on bankruptcy court authority in fraudulent transfer litigation. In granting certiorari in Arkison, the Supreme Court agreed to consider two questions: Can a bankruptcy court issue proposed findings of fact… Continue Reading
By Eric Daucher (US) on Posted in USOn June 24, 2013, the Supreme Court of the United States agreed to hear an appeal that will determine the future of fraudulent transfer litigation before all United States bankruptcy courts. In Executive Benefits Insurance Agency v. Arkison, SCOTUS will determine just how much its prior decision in Stern v. Marshall limits bankruptcy court authority… Continue Reading
