Section 547(c)(2)(A) of the Bankruptcy Code, often referred to as the “subjective OCB defense,” provides a defense to a preference suit if the defendant can show that the challenged payments made during the 90-day preference period are sufficiently consistent with the historical payments made by the debtor to the defendant.
Trade creditors will undoubtedly want to take steps to protect themselves when dealing with financially distressed customers that are potentially heading toward bankruptcy — such as by decreasing credit limits, tightening payment terms or otherwise ramping up collection efforts.
Through a preference claim, a debtor or trustee seeks to recover, subject to certain creditor defenses, payments that a trade creditor received within the 90-day period prior to a bankruptcy filing. Preference claims have always been an unfortunate reality for trade creditors.
In its recent decision in In re Orexigen Therapeutics Inc., the Third Circuit Court of Appeals held that triangular setoffs are not permissible in bankruptcy because they do not satisfy the mutuality requirement of § 553 of the Bankruptcy Code.
In the days leading up to a chapter 11 filing, companies seeking bankruptcy protection commonly ask whether they can continue to pay some of their vendors after the bankruptcy case is filed. On the flip side, in the days following a chapter 11 filing, vendors whose customer recently filed a bankruptcy case have the same question: Can we still get paid?
For the last 25 years, third-party releases in chapter 11 plans were thought to be categorically prohibited in the Ninth Circuit. With its recent decision in Blixseth v.
One thing that Toys “R” Us, Sears and Forever 21 have in common is that all three cases are administratively insolvent. Vendors who extended credit to the debtor after the petition date in reliance on the debtor’s assurances that it had adequate “DIP” financing to justify new credit terms got stuck a second time when there were inad
In Devices Liquidation Trust v. KMT Wireless LLC (In re Pers. Commc’ns Devices LLC), the U.S. Bankruptcy Court for the Eastern District of New York denied a critical vendor’s motion for summary judgment that advocated for a “hindsight extrapolation” approach to the critical-vendor defense.
The value of the legitimate cannabis industry in the U.S. (measured by annual sales) is rapidly approaching $10 billion and is expected by some to exceed $20 billion within the next five years. As the market grows, companies that do not grow or sell cannabis are nonetheless doing business with some that do.
Join the Unsecured Trade Creditors Committee to discuss recent hot topics and important developments in preference law. The discussion will include cutting-edge issues regarding the “ordinary course” and “new value” defenses, as well as developing issues regarding the interplay of preference law with § 503(b)(9) and “critical vendor” programs. Ensure that your preference toolkit is up to date with the latest tricks of the trade by listening in.
The UTC Committee hosted their January call on Thursday, the 10th, where speakers discussed (1) what to do when you get wind that your customer could be days or weeks away from a bankruptcy filing; (2) your customer files, so what first day motions should you focus on and be concerned about; and (3) you are "lucky" enough to be invited to serve on the creditors' committee - should you accept the invitation.
Hosted by the Secured Credit and Unsecured Trade Creditors Committees. Unsecured trade creditors and secured creditors confront similar plan analysis issues, including gerrymandering, vote incentivization schemes, drop dead provisions, and golden shares. The panel will discuss some of those “creative” plan provisions and interesting confirmation issues that impact both secured and unsecured creditors.
The panelists for this webinar will discuss the various types of health care cases and the competing interests that arise from a number of perspectives, including debtor, creditor, and provider-side interests. The panel will provide an overview of the uniqueness of bankruptcy health care cases and identify proven strategies to assist practitioners to guide unsecured creditors through these difficult and often complex reorganizations.
The Unsecured Trade Creditors Committee's May Tips of the Trade call featured Neil Steinkamp of Stout Risius Ross, LLC, who discussed the ordinary course of business defense in the context of preference analysis.
The ABI Unsecured Trade Creditors’ Committee (UTC) hosted a Tips of the Trade Call titled Involuntary Petitions – Issues to Consider before Pulling the Trigger.
The ABI Unsecured Trade Creditors’ Committee held their most recent Tips of the Trade Call to cover bankruptcy procedure in the country’s busiest business courts. Professionals who represent unsecured trade creditors inevitably find themselves practicing from time to time in the country’s busiest bankruptcy courts, the District of Delaware and the Southern District of New York.
Beware of the Traps: Ethical and Fiduciary Issues for Committee Members and Professionals
The Unsecured Trade Creditors' Committee's call discussed “gifting” and other recent developments regarding application of the absolute priority rule.
While lenders have relied on the protections of make-whole provisions in their loan agreements in the voluntary redemption context for years, what happens when a borrower files for bankruptcy and challenges the enforceability of such provisions in the bankruptcy context? This teleseminar explored these questions in light of the recent important decisions in Momentive Performance Materials, Inc. and Energy Future Holdings. Corp, et al.
Paul Hastings LLP
New York, NY
Lowenstein Sandler LLP
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Davis Wright Tremaine LLP