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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.

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

U.S. Bankruptcy Judge Dennis Montali recently ruled in the Chapter 11 case of Pacific Gas & Electric (“PG&E”) that the Federal Energy Regulatory Commission (“FERC”) has no jurisdiction to interfere with the ability of a bankrupt power utility company to
Continue Reading PG&E Bankruptcy Judge to FERC: What Part of “Exclusive” Jurisdiction Do You Not Understand?

The Supreme Court this week resolved a long-standing open issue regarding the treatment of trademark license rights in bankruptcy proceedings. The Court ruled in favor of Mission Products, a licensee under a trademark license agreement that had been rejected in
Continue Reading Mission Products v Tempnology – Supreme Court Declines to “Vaporize” Licensee’s Rights Under Rejected Trademark License Agreement

Few issues in bankruptcy create as much contention as disputes regarding the right of setoff. This was recently highlighted by a decision in the chapter 11 case of Orexigen Therapeutics in the District of Delaware.  Judge Kevin Gross denied a
Continue Reading The Devil’s Triang(ular Setoff) – Delaware Judge Rejects Corporate Parent’s Attempt to Set Off Debt Owed to Subsidiary

The judicial power of the United States is vested in courts created under Article III of the Constitution. However, Congress created the current bankruptcy court system over 40 years ago pursuant to Article I of the Constitution rather than under
Continue Reading Square Peg / Round Hole – The Supreme Court and the Constitutional Authority of U.S. Bankruptcy Courts

Southeastern Grocers (operator of the Winn-Dixie, Bi Lo and Harvey’s supermarket chains) recently completed a successful restructuring of its balance sheet through a “prepackaged” chapter 11 case in the District of Delaware. As part of the deal with the holders
Continue Reading Delaware Judge Rejects Challenge to Payment of Fees for Indenture Trustee in Southeastern Grocers Chapter 11 Case