Ninth Circuit Rulings on Equitable Mootness in Transwest and Sunnyslope Impact Third Party Investors

The doctrine of equitable mootness provides that Chapter 11 reorganization plans will be deemed moot, and therefore not subject to appellate review, if a plan has been substantially consummated and granting appellate relief would impair the rights of innocent third parties relying on the confirmation order.  Since the development of the court-created mootness doctrine nearly a quarter century ago, courts have grappled with applying it in such a way as to strike an adequate balance between the need for finality, and the need to exercise the court’s jurisdiction and preserve the right to appellate review.  The standard interpretation in bankruptcy was that once the debtor took definitive steps to put the Chapter 11 plan in place (i.e., “substantial consummation”), and the objecting creditor neglected to gain a stay of the plan confirmation order pending appeal, then any appeal was presumed to be “equitably moot” and therefore subject to dismissal by the appellate court.

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Supreme Court Holds that Bankruptcy Courts can Adjudicate Stern Claims

In a 6-3 ruling, the U.S. Supreme Court held that bankruptcy courts have the authority to adjudicate Stern claims so long as the litigant parties provide “knowing and voluntary consent.”  This decision in Wellness International Network, et. al. v. Richard Sharif  provides much needed guidance as to the breadth and applicability of the Supreme Court’s 2011 decision in Stern v. Marshall.   Continue Reading

Insolvency-Related Implications for the Oil & Gas Industry in the U.S.

Despite the tremendous growth and development of oil and gas resources in recent years, the industry is expected to be a boon for bankruptcy lawyers. This article explores how the current low price environment hurts developers and their lenders, whose past investment premises included a sustained high price environment and provides some insight into what the issues will be in bankruptcy.

Click here to read the full article originally published by The Metropolitan Corporate Counsel.

 

 

CFPB Issues Compliance Bulletin On Confidentiality of Supervisory Information

On January 27, 2015, the Consumer Financial Protection Bureau (“CFPB”) issued a compliance bulletin reminding supervised financial institutions (including large depository institutions, credit unions and their affiliates, certain nonbanks, and service providers) of existing regulatory requirements regarding confidential supervisory information.  In this article we (i) explain the definition of confidential supervisory information; (ii) discuss exceptions to the non-disclosure rule; and (iii) offer tips for ensuring compliance. Continue Reading

Second Circuit Holds RMBS-issued Certificates Are Exempt from the TIA

On December 23, 2014, the United States Court of Appeals for the Second Circuit issued an opinion on an issue of first impression, namely the scope of § 304(a)(2) of the Trust Indenture Act of 1939, 15 U.S.C. §§ 77aaa-77aaaa (the “TIA”), and its application to certificates issued by trusts under pooling and servicing agreements (“PSAs”).  See Ret. Bd. of Policemen’s Annuity & Benefit Fund v. Bank of N.Y. Mellon, Nos. 13-1776-cv, 13-1777-cv (2d Cir. Dec. 23, 2014).

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Federal Court Limits Tribe’s, Secretary’s Options When States Balk at Gaming Compact

A federal district court in New Mexico has issued a decision finding that the U.S.  Department of the Interior’s regulations permitting the Secretary of the Interior to adopt Class III gaming procedures for a tribe lacking a Tribal-State Compact are invalid and violate the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701 et. seq. (“IGRA”).  If upheld, the decision in New Mexico v. Dept. of Interior could be expected to shift the balance of power to the states in the negotiation of new compacts and renewed compacts.  The decision also may result in pressure on the Department of the Interior to exercise its role as trustee for tribes and sue states that fail to negotiate compacts in good faith.

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When Goods Are Shipped from Overseas, When Are They Considered “Received by the Debtor” for Purposes of Asserting a Section 503(b)(9) Administrative Claim?

A bankruptcy court in Pennsylvania recently held that trade creditors who supplied goods to a debtor prior to its bankruptcy filing were not entitled to administrative priority status under Bankruptcy Code section 503(b)(9) because the goods were “received by the debtor” at the time they were placed on the vessel at the port overseas more than 20 days before the debtor’s bankruptcy filing, although the debtor took possession of the goods within the 20 day period.  In re World Imports, Ltd. — B.R. —-, 2014 WL 2750258 (Bankr. E.D. Pa., June 18, 2014).

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U.S. Supreme Court Decision in Michigan v. Bay Mills Indian Community et al.

The U.S. Supreme Court (“Court”) issued a 5-4 decision today in a case with implications for Tribal-State relations and the resolution of disputes under the federal Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq. (“IGRA”).  The Court in Michigan v. Bay Mills Indian Community[1] found that the sovereign immunity of the Bay Mills Indian Community (“Tribe”) barred a suit filed by the State of Michigan (“Michigan”) to enjoin Class III gaming on the Tribe’s Vanderbilt property, land the Tribe purchased in fee located 100 miles south of its reservation.  In making its decision today, a majority of the Court:

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Continuity of Enterprise is Enough for Successor Parties to be Liable

Successor liability is often a concern for the acquirer when purchasing substantially all of a seller’s assets.  While this risk is well known, the circumstances under which an acquirer will be found liable under the theory of successor liability are less clear.  The recent decision in Call Center Techs., Inc. v Grand Adventures Tour & Travel Pub. Corp., 2014 U.S. Dist. Lexis 29057, 2014 WL 85934 (D. Conn. 2014), sheds helpful light on this issue by defining the continuity of enterprise theory of successor liability.

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