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Ben represents indenture trustees, bank lenders, debtors, bondholders, creditors’ committees and other parties in interest, in all phases of Chapter 11 and other cases under the Bankruptcy Code, in U.S. and foreign workouts, and in out-of-court restructurings.

A recent decision by Delaware Bankruptcy Judge John Dorsey will limit the ability of bankruptcy trustees to expand the lookback period for avoiding pre-bankruptcy transfers beyond the four years provided under most state law fraudulent conveyance statutes.  In dismissing a
Continue Reading Ten Years Gone – Delaware Bankruptcy Judge Rejects Effort to Extend Lookback Period for Avoidance of Pre-Bankruptcy Transfers

A paper to be published soon in the University of Southern California Law Review, “The Rise of Bankruptcy Directors,” is sharply critical of the increased use of supposedly “independent directors” by distressed companies, often in anticipation of filing
Continue Reading Does a Declaration of Independence Suffice? A New Study Raises Significant Questions About “Independent Directors” of Large Distressed Companies

The allowance of postpetition interest in solvent debtor chapter 11 cases has become an important issue in recent years for corporate issuers, bondholders and other creditors.  This post will examine a recent decision in the Hertz case by Judge Mary
Continue Reading Driving While Unimpaired – Delaware Judge Issues Important Ruling in Hertz Chapter 11 Case on Allowance of Make-Whole Premiums, Treatment of Unimpaired Creditors, and Postpetition Interest (Part 2)

The treatment of make-whole premiums in solvent debtor chapter 11 cases has become an important issue in recent years for corporate issuers and bondholders.  This post will examine a recent decision in the Hertz case by Judge Mary Walrath of
Continue Reading Driving While Unimpaired – Delaware Judge Issues Important Ruling in Hertz Chapter 11 Case on Allowance of Make-Whole Premiums, Treatment of Unimpaired Creditors, and Postpetition Interest (Part 1)

Two recent judicial decisions, Sanchez Energy and Tribune Media, highlight the challenges faced by indenture trustees and their professionals in chapter 11 cases where there are no recoveries to noteholders.  Federal law requires that public debt be issued under
Continue Reading Two Important Rulings on Payment of Indenture Trustee Fees in Chapter 11 Cases

The U.S. Court of Appeals for the Third Circuit recently became the first circuit court to address the question of whether a corporate parent can set off an obligation that it owes to a bankrupt company against a claim owed
Continue Reading The Devil’s Triang(ular Setoff), Revisited – Third Circuit Affirms Denial of Corporate Parent’s Attempt to Set Off Debt Owed to Subsidiary

A recent decision by Judge Jed Rakoff of the Southern District of New York highlights the risks faced by directors and officers of companies in financial distress who fail to undertake properly their duties to the company and its stakeholders.
Continue Reading If the Shoe Fits . . . . Defendants in Nine West D&O Litigation Fail to Convince Judge to Dismiss Claims for Breach of Fiduciary Duty and Recovery of Fraudulent Transfers

The much-ballyhooed COVID relief bill passed by Congress at the end of last year, in addition to providing for $600 checks to millions of people, includes several COVID-related amendments to the U.S. Bankruptcy Code. Some of these changes will have
Continue Reading Commercial Landlords Take Note – COVID Relief Bill Contains Important Bankruptcy Code Amendments

The New York Court of Appeals recently handed down an important opinion on out of court restructurings involving bond debt. In CNH Diversified Opportunities Master Account, L.P., v. Cleveland Unlimited, Inc., the Court of Appeals, in a 4–3 ruling,
Continue Reading New York Court of Appeals Splits From Second Circuit on Minority Bondholders’ Rights in Out of Court Restructurings

The economic fallout from the COVID-19 pandemic will leave in its wake a significant increase in commercial chapter 11 filings. Many of these cases will feature extensive litigation involving breach of contract claims, business interruption insurance disputes, and common law
Continue Reading Third Circuit Ruling on Constitutional Authority of Bankruptcy Courts Can Provide Guidance for the Looming Wave of COVID-19 Cases