Statements made during mediation are privileged and confidential — right? In the context of federal bankruptcy proceedings, the answer is not so simple. Some practitioners will be surprised to learn that there is no such thing as a federal “mediation privilege.” The mediation privileges that most practitioners are familiar with are actually creatures of state law.
On June 2, 2017, the Fifth Circuit Court of Appeals issued its decision in Asarco LLC v. Montana Resources Inc., affirming an order on appeal from the U.S. District Court for the Southern District of Texas.
Bankruptcy practitioners across the circuits understand these categories of adversary proceedings or contested matters, involving state law claims, that could potentially be subject to bankruptcy jurisdiction: core and non-core proceedings. For core proceedings, a bankruptcy court may enter “final” orders and judgments.
In the recent spate of energy-related bankruptcy cases, restructuring efforts have focused on the underlying business economics — debt-for-equity swaps, rejection of gathering agreements, lease and contract rejections to improve operational efficiencies, and similar efforts. To date, however, many of the cases largely have ignored environmental issues and claims.
The rise in energy-sector bankruptcies has brought the question of whether oil and gas conveyances can be assumed or rejected under § 365 of the Bankruptcy Code to the surface. Issues related to assumption and rejection are particularly difficult in the energy sector because “[t]raditional property concepts are difficult to apply in the oil and gas context.
Bankruptcy courts are faced with increasing discovery disputes over electronic discovery. One increasingly prevalent topic of contention is the production and use of metadata, which can be used in a variety of ways in avoidance actions and other adversary proceedings.
Real estate debtor principals who guaranty a debtor’s debts often face uphill battles to obtain stays pursuant to § 105 of the Bankruptcy Court of guaranty actions against them by secured creditors of the debtor. The bankruptcy court in In re Chicora Life Center, LC recently issued such a stay.
Section 363 of the Bankruptcy Code provides for a trustee or debtor-in-possession to sell property of the bankruptcy estate outside of the ordinary course of business. To facilitate such sales, § 363(f) of the Bankruptcy Code permits a trustee or debtor-in-possession to sell such property “free and clear of any interest in such property” under certain circumstances.
The Bankruptcy Litigation Committee had a tremendous 2016! We strived to continue to provide our members with enlightening and useful substantive information while also offering enjoyable and valuable social and networking opportunities.
Morris, Nichols, Arsht & Tunnell LLP
Pachulski Stang Ziehl & Jones LLP
Thompson & Knight LLP
Membership Relations Director
Ice Miller LLP