Bankruptcy Litigation Committee


Post date: Thursday, May 22, 2014

In November 2013, the Third Circuit decided In re KB Toys Inc.,[1] which has created a split of authority between Delaware and New York concerning the defenses of claims traders to preference liability. KB Toys may chill claims trading within that Circuit, while existing favorable treatment remains within the Southern District of New York.

Post date: Thursday, May 22, 2014

The Fifth Circuit’s ruling on Nov. 11, 2013, in BP RE L.P. vs. RML Waxahachie Dodge L.L.C. et al..[1] extended what it had previously acknowledged was a “narrow ruling” by the U.S. Supreme Court in Stern vs. Marshall.[2] The panel essentially held that the authority granted to the bankruptcy court to enter final orders and judgments under 28 U.S.C. §157(c)(2) is unconstitutional, despite express consent.

Post date: Tuesday, April 15, 2014
Photo of Laura Napoli Coordes
Laura Napoli Coordes

Legal proceedings where courts have been required to determine the classification of electricity as either a “good” or a “service” under § 503(b)(9) of the Bankruptcy Code have been the subject of recent “charged” debates.

Post date: Tuesday, April 15, 2014
Photo of John Cardinal Parks
John Cardinal Parks

Numerous bankruptcy court decisions have considered whether electricity is a good under 11 U.S.C. § 503(b)(9).[1] One of the most recent decisions, In re NE Opco Inc.,[2] bucks a recent trend in cases that have held that electricity is a good under § 503(b)(9).[3] Moreover, in ruling that electricity is not a good for this purpose, the NE Opco court adopted a fresh approach to the issue based on the notion of meaningful delay between identification to the contract and consumption.

Post date: Tuesday, April 15, 2014

Section 503(b)[1] of the Bankruptcy Code sets out the nine types of administrative expenses in a bankruptcy proceeding that receive a priority distribution under § 507(a)(2). Section 503(b) derives from § 64a of the Bankruptcy Act of 1898, which entitled the costs and expenses of administration of a bankruptcy estate to priority over dividends paid to creditors.[2] Section 503(b)(9) grants a seller of goods an administrative expense for the value of any goods that the debtor received within 20 days before the petition date, if the goods were sold to the debtor in the ordinary course of the debtor’s business.[3]

Post date: Tuesday, April 15, 2014
Photo of Todd Henry Bartels
Todd Henry Bartels

Section 503(b)(9) of the Bankruptcy Code creates an administrative expense for “the value of any goods received by the debtor” within 20 days preceding bankruptcy. While there is little case law analyzing the appropriate measure of “value” under this section, courts that have addressed the question recognize that the purchase price reflected in the invoice or contract, pursuant to which the goods were delivered to the debtor, is prima facie evidence of value but that it can be rebutted by other evidence.

Post date: Sunday, March 23, 2014

Determinations as to whether electricity is a “good” for purposes of § 503(b)(9) remains an intensely fact-driven exercise with a lack of consistency coming from the courts. This inconsistency was evidenced by four recent written decisions addressing the issue.
It’s the Facts? It’s the Facts!

Post date: Monday, June 06, 2011

Whether a particular dispute arising in a bankruptcy case must be decided by arbitration or litigation before the bankruptcy court is itself an issue that has been the subject of much litigation in bankruptcy courts.

Post date: Thursday, May 05, 2011

Tax refunds and the election by consumer debtors to apply those refunds to future tax liability can raise many issues in consumer chapter 7 and chapter 13 bankrupt

Post date: Thursday, May 05, 2011

In In re Philadelphia Newspapers LLC


Mr. Joseph C. Barsalona, II
Morris, Nichols, Arsht & Tunnell LLP
Wilmington, DE
(302) 351-9118

Mr. Peter J. Keane
Pachulski Stang Ziehl & Jones LLP
Wilmington, DE
(302) 778-6462

Mr. Anthony F. Pirraglia
Communications Manager
Holland & Knight LLP
Houston, TX
(713) 654-8111

Ms. Isley Markman Gostin
Education Director
Washington, DC
(202) 663-6551

Mr. John C. Cannizzaro
Membership Relations Director
Ice Miller LLP
Columbus, OH
(614) 462-2700

Mr. Michael T. Delaney
Newsletter Editor
Cleveland, CA
(216) 861-7478

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