Helping Clients Navigate COVID-19 (Updating)
August 18, 2020Client Alerts, FEATURED PUBLICATION Kleinberg Kaplan is working closely with our clients to provide counsel and guidance during these unprecedented times. A selection of our recent thought leadership pieces related to the implications of COVID-19 includes: Corporate Considerations The PPP Just Got Better (June 10, 2020): Chris Davis, Dov Kleiner, Uri Rosenwasser and Benjamin Goldman discuss the key highlights of the…
Triple Flip Flop: Safe Harbor Sinks Lehman Appeal
August 12, 2020Client Alerts The Second Circuit has affirmed, on appeal, the dismissal of an attempt by the Lehman Brothers estate to unwind payments made in connection with a series of collateralized debt obligation (“CDO”) structures. The decision, Lehman Brothers Special Financing Inc. v. Branch Banking and Trust Company (In re Lehman Brothers Holdings, Inc.), marks the third time that…
Three for the Lenders
May 27, 2020Client Alerts A series of recent decisions may provide boosts for the positions of lenders. Post-Petition Interest on an Oversecured Claim In re Family Pharmacy, Inc. held that Missouri law, like New York law, distinguishes between permissible default interest and impermissible penalties. However the case diverges from the majority view adopted by several circuit courts of appeal insofar…
Wish You Were Here: Notarizing in the Age of Social Distancing
April 14, 2020Client Alerts As we manage the many dislocations resulting from the COVID-19 pandemic, some of the more ordinary tasks still need to be undertaken. One such task is notarization. How can one subscribe and swear “before” a notary in this age of social distancing? Fortunately, workarounds are available, some new and some already existing pre-pandemic. New York State Notarization Using…
Kleinberg Kaplan Attorneys Quoted in Law360: “As Bankruptcy Storm Brews, Legal Pros Say Save Cash”
April 3, 2020Firm News Kleinberg Kaplan’s Business Restructuring and Reorganization partners Matthew J. Gold and Dov R. Kleiner were quoted in a Law360 article: “As Bankruptcy Storm Brews, Legal Pros Say Save Cash.” In the article, Matt and Dov discuss the potential increase of bankruptcy filings across industries as COVID-19 continues to impact businesses. For those companies that seek…
Slo-Mo: Bankruptcy Court Suspends Modell’s Case
March 31, 2020Client Alerts A recent decision by the Bankruptcy Court for the District of New Jersey, In re Modell’s Sporting Goods, Inc., illustrates the difficult problems caused by the COVID-19 pandemic, the ways that parties to a bankruptcy case may react and issues distressed companies, their creditors and stakeholders should consider in the current climate before a bankruptcy petition…
COVID-19: Considerations for Lenders and Credit Managers
March 20, 2020Client Alerts During these stressful, uncertain and rapidly changing times, Kleinberg Kaplan’s thoughts go out to our clients and the welfare of their families and businesses. As we adjust to the continuously changing circumstances, we reach out to our many fund clients with a reminder that lenders and credit managers will need to be proactive in making sure…
COVID-19: Positioning Your Business to Survive this Season
March 19, 2020Client Alerts The global outbreak of COVID-19 has reached the United States with significant impact. Right now, we are all doing what we need to do in order to keep our families and communities safe. But as we settle in to what experts say could be weeks, if not months, of slowdown, we also recognize that the business…
Puttin’ on the Ritzen: Supreme Court Rules that Stay Relief Denial is Appealable
January 23, 2020Client Alerts A recent Supreme Court decision, Ritzen Group Inc. v. Jackson Masonry, LLC, has enhanced the position of secured creditors and litigants in bankruptcy cases by allowing them to promptly challenge bankruptcy court rulings concerning the automatic stay. Background The case grew out of a sale of real property that did not close. The buyer (Ritzen) sued…
Hot Off The Press: Newest Tribune Decision Affirms Safe Harbor Defenses
December 23, 2019Client Alerts The latest decision by the Second Circuit Court of Appeals in the long-running Tribune Company fraudulent conveyance litigation provides Court of Appeals endorsement of safe harbor defenses to clawback actions that had been considered potentially vulnerable following the Supreme Court’s decision in Merit Management Group LP v. FTI Consulting, Inc. The opinion amounts to a reconsideration and reaffirmation…
Lessons from Willful Blindness Decision Alerts
December 5, 2019Client Alerts A recent decision by Judge Stuart Bernstein of the Bankruptcy Court for the Southern District of New York, Irving Picard, as trustee for Bernard L. Madoff Investment Securities LLC v. Citibank, N.A., clarifies the parameters of the “willful blindness” standard applicable in fraudulent conveyance actions, and illustrates practical applications of safe harbor defenses that may be asserted…
Difficult to Avoid: Supreme Court Leans Against Avoidance Actions
July 31, 2019Client Alerts A review of the two bankruptcy law decisions issued by the Supreme Court in its most recent term (Mission Product Holdings Inc. v. Tempnology, LLC and Taggart v. Lorenzen) shows that the Court may be tilting against avoidance actions in ways that should provide comfort to avoidance defendants. Mission Product Holdings Inc. v. Tempnology, LLC…
Extra, Extra: Tribune decision bolsters Safe Harbor Defenses
May 1, 2019Client Alerts The most recent decision in the long-running Tribune Company Fraudulent Conveyance Litigation multi-district case shores up safe harbor defenses to clawback actions that had been challenged following the Supreme Court’s Merit Management decision. The decision approves a broad reading of the statutory definition of “financial institution,” and thus extends the protection of the safe harbor…
Sears Trading Order
October 26, 2018Client Alerts On October 16, 2018, the Bankruptcy Court overseeing the Sears bankruptcy cases entered an interim order relating to ownership and transfers of interests in the Sears debtors. Among other things, the interim order requires the filing of a notice by any entity (as defined in Treasury Regulations Section 1.382-3(a)) that is or will become a…
Bankruptcy Court Tells Claims Traders: “Do Your Homework!”
July 23, 2018Client Alerts, FEATURED PUBLICATION Traders in claims of bankruptcy debtors should take note of a recent Delaware Bankruptcy Court decision that prevents the transfer of claims when the underlying debt instrument prohibited the transfer without the borrower’s consent. In In re Woodbridge Group of Companies, LLC, et al. No. 17-12560 (KJC), (Bankr. Del. June 20, 2018) (http://www.deb.uscourts.gov/sites/default/files/opinions/judge-kevin-j-carey/woodbridge-contrarian-opinion-and-order.pdf), the court…
Game of Designations: Ninth Circuit Overturns Bad Faith Finding
July 9, 2018Client Alerts, FEATURED PUBLICATION A recent decision by the Ninth Circuit Court of Appeals, Pacific Western Bank v. Fagerdala USA – Lompoc, Inc. (In re Fagerdala USA – Lompoc, Inc.), strengthens the hand of creditors that seek to block confirmation of a cramdown plan by purchasing other claims, and may contribute to the liquidity of the market in bankruptcy debt.…
Release Me!: New York Bankruptcy Court Enforces Third Party Releases by UK Debtor
May 15, 2018Client Alerts, FEATURED PUBLICATION The United States Bankruptcy Court for the Southern District of New York recently entered an order enforcing a UK scheme of arrangement[1] that contained provisions – non-consensual third-party releases – that might not necessarily have been permissible under U.S. bankruptcy law. In re Avanti Commc’ns Group plc, No. 18-10458 (MG), (Bankr. S.D.N.Y. Apr. 9, 2018)…
Flip Flop: Safe Harbor Sinks Lehman Appeal
April 5, 2018Client Alerts, FEATURED PUBLICATION A New York district court has affirmed, on appeal, the dismissal of an attempt by the Lehman Brothers estate to unwind payments made in connection with a series of CDO structures. The decision, Lehman Brothers Special Financing Inc. v. Bank of America N.A. (In re Lehman Brothers Holdings, Inc.), marks the second time that a…
Don’t Look Inside: Supreme Court Insulates Insider Determinations from Appellate Review
March 22, 2018Client Alerts, FEATURED PUBLICATION In its second Bankruptcy law decision in a week, the United States Supreme Court has limited the role of appellate courts in reviewing Bankruptcy Court determinations of insider status under section 101(39) of the Bankruptcy Code. The case, U.S. Bank N.A., Trustee, by and through CWCapital Asset Management LLC v. Village at Lakeridge, LLC, was…
Troubled Waters Ahead: Supreme Court Narrows Safe Harbor
March 6, 2018Client Alerts, FEATURED PUBLICATION The United States Supreme Court has narrowed the scope of section 546(e), the Bankruptcy Code securities safe harbor for clawbacks, such that it may be available in many cases to only banks, large funds, and other large financial institutions. The case, Merit Management Group LP v. FTI Consulting, Inc., is the first Supreme Court test…
Storm Warning: Supreme Court to Rule on Safe Harbor
November 29, 2017Client Alerts, FEATURED PUBLICATION A case currently before the United States Supreme Court could significantly restrict the scope of an important defense to clawback actions, limiting its usefulness for entities that are not major financial institutions or large funds. Based on recent oral argument, the Bankruptcy Code safe harbor for clawbacks may be given a narrow interpretation, leaving it…
Supreme Court Dismisses Structured Dismissals
March 24, 2017Client Alerts, FEATURED PUBLICATION A recent decision by the United States Supreme Court, Czyzewski v. Jevic Holding Corp., curtails the controversial practice of concluding chapter 11 cases with “structured dismissals”. The decision narrows the range of options available to parties attempting to craft settlements resolving chapter 11 cases, and could increase the leverage available to holdouts. Background In 2008…
What does it take to be voluntary?: Courts negate blocking director/member LLC provisions
June 15, 2016Client Alerts, FEATURED PUBLICATION Two recent decisions by bankruptcy courts, In re Lake Michigan Beach Pottawattamie Resort LLC, 547 B.R. 899 (Bankr. N.D. Ill. April 5, 2016) and In re Intervention Energy Holdings, LLC, case no. 16-11247 (Bankr. Del. June 3, 2016), have cast doubt on the viability of a strategy often used by lenders to undermine borrowers’ ability…
Stop the Presses: Court of Appeals Holds That Safe Harbor Blocks Creditor Fraudulent Conveyance Actions Against Tribune Shareholders
March 31, 2016Client Alerts, FEATURED PUBLICATION A recent decision by the Court of Appeals for the Second Circuit, In re Tribune Company Fraudulent Conveyance Litigation, has emphatically rejected a controversial workaround strategy used by plaintiffs in several pending fraudulent conveyance cases brought against shareholders of public companies, providing clarity regarding the scope of the “Safe Harbor” defenses of Bankruptcy Code section…
Paved with Good Intentions: Court Explores Contours of “Actual Intent” Fraud
February 9, 2016Client Alerts, FEATURED PUBLICATION A recent decision by New York Bankruptcy Judge Gerber has both raised the hopes of thousands of good faith shareholder defendants mired in long-running adversary proceedings and provided useful guidance to practitioners regarding the scope of “actual intent” fraudulent conveyance law. The cases, Weisfelner v. Fund 1, Weisfelner v. Reichman, and Weisfelner v. Hofmann, are…
New York Law Provisions of an Indenture Provide Eligibility for Chapter 15 Filing by Foreign Debtor
November 5, 2015Client Alerts The United States Bankruptcy Court for the Southern District of New York held last week that a foreign corporation that had issued debt pursuant to an indenture with a New York choice of law and New York forum selection clause and had commenced an insolvency proceeding in its home jurisdiction may file for chapter 15…
Supreme Court Declines to Review Safe Harbor Victory for Madoff Defendants
June 24, 2015Client Alerts In a significant victory for brokerage customers, the Supreme Court has declined to accept an appeal by Irving Picard, the Madoff Securities trustee, from a decision by the Court of Appeals for the Second Circuit, Picard v. Ida Fishman Revocable Trust (In re Bernard L. Madoff Investment Securities LLC) (analyzed in our previous alert), that…
Second Circuit Provides Safe Harbor for Madoff Defendants
December 15, 2014Client Alerts A recent decision by the Court of Appeals for the Second Circuit, Picard v. Ida Fishman Revocable Trust (In re Bernard L. Madoff Investment Securities LLC), sharply limits the remedies available to trustees in brokerage liquidations, provides significant protections for innocent customers of fraudulent brokers, and further shapes the ongoing debate over Bankruptcy Code safe harbors. For former customers…
Victory for Kleinberg Kaplan Clients in U.S. Court of Appeals
December 9, 2014Client Alerts Kleinberg, Kaplan, Wolff & Cohen attorneys David Parker and Matthew Gold are part of the legal team that won an important victory in the United States Court of Appeals for the Second Circuit for former customers of Bernard Madoff Securities. The Second Circuit’s ruling sharply restricts the remedies available to Irving Picard, the Madoff Securities…
Safer Harbor: Foreign Transactions May Be Beyond The Reach of a Bankruptcy Trustee
July 9, 2014Client Alerts A recent decision by Judge Jed Rakoff of the District Court for the Southern District of New York, Securities Investor Protection Corp. v. Bernard L. Madoff Investment Securities LLC, provides reassurance to foreign investors in off-shore funds that payments they receive are beyond the reach of avoidance actions brought under the U.S. bankruptcy laws. The…
Taint Necessarily So: Third Circuit Holds that Taint Travels with Claim
November 21, 2013Client Alerts A new decision by the Third Circuit Court of Appeals, In re KB Toys, Inc., may strongly influence the debate regarding whether a bankruptcy claim transferred on the secondary market is subject to disallowance based on acts of the original holder of the claim. As discussed in our prior alert, KB Toys concerned from objections…
Bankruptcy Reform
December 31, 2012Client Alerts Kleinberg Kaplan will participate in a study of potential Bankruptcy Code reform. The American Bankruptcy Institute has formed a commission to study and propose reforms to Chapter 11 of the Bankruptcy Code that will better balance the goals of reorganization of business debtors, preservation of jobs and maximization of asset values for the benefit of…
Commercial Leasing Issues
October 31, 2012Client Alerts Leasing has always played an important role of our real estate practice, representing both landlords and tenants. We have recently written about certain important issues pertinent to commercial leasing. First, Real Estate Forum recently published an article by Jason Polevoy of our real estate group, in which he discusses steps available to a landlord both…
