Joining the Eighth and Ninth Circuit Courts of Appeals, the Fifth Circuit Court of Appeals recently held that a debtor or trustee can sell its avoidance actions to third-party, non-estate representatives. See Briar Capital Working Fund Capital, L.L.C. v. Remmert (In re South Coast Supply Company), No. 22-20536 (5th Cir. Jan. 22, 2024) (Dennis, J). […]
Read MoreIn Spark Factor Design, Inc., et al. v. Hjelmeset (In re Open Medicine Institute, Inc.), No. 22-60017 (9th Cir. Oct. 30, 2023), the Ninth Circuit Court of Appeals recently found that a bankruptcy court has discretion of whether to apply the standards under section 363(b) of the Bankruptcy Code in cases where a debtor’s sale of […]
Read MoreA third-party injunction in a chapter 11 bankruptcy is generally used to protect a non-bankrupt entity from liability that is shared with, or derivative of, a bankrupt entity. Third-party injunctions are difficult to obtain in any bankruptcy setting, because bankruptcy laws are generally intended to protect debtors in bankruptcy, not non-debtor affiliates. Increasingly, however, third-party […]
Read MoreIn MOAC Mall Holdings LLC v. Transform Holdco LLC, 134 S.Ct. 927, 937 (2023), the U.S. Supreme Court recently resolved a debate that has long divided Circuit Courts throughout the U.S: whether section 363(m) of the Bankruptcy Code, a provision that is intended to protect good-faith purchasers of bankruptcy assets, imposes a jurisdictional barrier to a […]
Read MoreIn re Ultra Petroleum Corporation is one case that has caused the Fifth Circuit Court of Appeals to revisit the permissibility of Make-Whole provisions, at least three times, over several years. Earlier discussions of the case have been the subject of prior CRR articles. See Fifth Circuit Holds that Chapter 11 Plan Does not “Impair” […]
Read MoreIntro The ability of a chapter 11 going-concern debtor to be discharged from its prepetition liabilities is common place and not controversial. 11 U.S.C. § 1141(d). However, the ability of a debtor to release third-party non-debtors from their own liabilities has sparked much debate, because, among other things, the Bankruptcy Code does not clearly or […]
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