Here’s an aggregation of my daily Twitter posts from April 13-22, 2018, linking to important cases, articles, and news briefs that restructuring professionals will find of interest. Don’t hesitate to reach out and contact me to discuss any posts.
April 13 – 22, 2018
- BAP-9: BAP-9 (Fitzhugh): BK court erred in applying the elements of § 727(d)(1) & (d)(2) bec Trustee had to prove, under both statutes, that he was unaware of the alleged fraud at the time the discharge was entered, not just at the time of the discharge bar date. In re Fitzhugh
- BAP-6: The sad story of this great hockey player continues, with the BAP-6 affirming his chapter 11 plan, premised upon a $5M five-yr contract. In re Johnson. For further background, see How Jack Johnson’s Parents Screwed Him And Left Him Millions In Debt, from Deadspin
- ND-IL: Blixseth and others’ suits against Cushman and Wakefield for inflated appraisals are defended by the ins. carrier under a reservation of rights. Court court now begins untangling those rights, granting summary judgment on some claims and setting others for trial. Cushman And Wakefield Inc v Illinois Nat’i Ins. Co.
- ND-IL: State court foreclosure judgment & sale are “final judgments” for purposes of applying Rooker-Feldman notwithstanding the interlocutory character of the judgment of foreclosure under state law. Kyles v Federal Home Loan Mortgage Corp
- B-ID: Court doesn’t believe debtors no longer have the debtor-wife’s $46K diamond/platinum wedding ring given that a week before meeting with a bankruptcy attorney, and less than 2 months before filing for BK, the debtor-wife discovered that her debtor-hubby was having affair, and promptly threw ring into lake behind the home. Cutcliff v Reuter
- B-ND-IL: Judge Thorne disembowels Geraci Law and Semrad Law, while providing a good historical narrative on the law regarding attorneys fees in BK: “The court begins with the question as to whether or not the attorneys have violated any fiduciary obligations they owe to their clients in seeking payment of fees on an accelerated basis in their ch 13’s plans with the disclosures that were given in these cases. The court concludes that in these cases, since the cases are consumer chapter 13 cases where the attorney is to be paid at least partly over time pursuant to the chapter 13 plan, the attorneys had a minimum duty to disclose the negative ramifications of an early dismissal on the interests of the debtor prior to or simultaneously with entering into the retention agreement.” In re Carr
- B-ED-LA: Debtor’s CEO is personally liable for the debtor’s admin. claims, not as alter ego, but for failing to perform maintenance and post-rejection turnover of the lenders’ aircraft collateral. In re FlyGLO Inc
- B-MA: Employing a “multi-factor” approach, a Court will uphold contractual provisions waiving protections of the automatic stay when they are incorporated in court orders approving settlement agreements or orders confirming Chapter 11 plans. In re A Hirsch Realty LLC
- B-ND-TX: Single petitioning creditor gets order for relief entered with finding that the alleged debtors only have 11 creditors, which was really cutting it close given the court’s declaring a law firm with a questionable claim to be a non-creditor. In re Acis Capital Management LP
- B-ED-WI: When is a breach of contract case actionable as a 542 turnover claim? Court here denies Univ. of WI’s summary judgment motion against a claim it failed to fund a biodigester’s deficits & construction costs, ruling that the claim survives summary judgment because the action was brought as a 542 turnover claim. In re University of Wisconsin Oshkosh Foundation Inc
Interesting Non-Bankruptcy Cases from Illinois Courts:
- IL-AP (5th): Settling parties failed to meet their burden to make a preliminary showing that the mass tort environmental settlement was legally valid and that the terms of the Settlement Agreement satisfied the “equitable apportionment policy” underlying the Contribution Act. Custer v Cerro Flow Products Inc
- ND-IL: “For Motorola, none of this matters, because – its lawyers assure us, with absolutely no evidentiary support – that the email was the necessary first step in the obtaining legal advice. Unfortunately saying so doesn’t make it so. It cannot be too often repeated or too strongly emphasized that while a particular communication may be privileged, the underlying facts are not.” Motorola Solutions Inc v Hytera Communications Corp
- ND-IL: Neptun’s clearest articulation of the alleged harm is that “[d]esiring & selecting a more expensive & poorly-performing product in advance of any bidding, & irrespective of performance is anticompetitive.” That theory has no recognition in the law, for good reason. Neptun Light Inc v City of Chicago
- ND-IL: Court reviews various types of website “consent to terms” agreements, including “clickwrap,” “browsewrap,” and hybrid or “sign-in wrap” agreements and rules that personal jurisdiction over a defendant cannot be based on an electronic forum selection clause merely based on having clicked an “I agree to terms and conditions” box as a condition to completing site’s application process. TopstepTrader LLC v OneUp Trader LLC
- ND-IL: “The Non-Compete Covenant clearly would prevent the employee from taking any number of plausible roles at another industry player, no matter how far removed from actual competition with Medix. Such a prohibition is unenforceable.” Medix Staffing Solutions Inc v Dumrauf
LAW RELATED ARTICLES:
- ABI Spring Meeting: American Bankruptcy Institute members will appreciate the quality of the presentations at this year’s Annual Spring Meeting.
- Amazon and Antitrust: Amazon’s Antitrust Paradox, by Lina Khan, Yale Law Journal.
- BK Filing Authorization: Bankruptcy Remoteness Going to a Court of Appeals, by David Dyhouse (Patterson Belknap), via JD Supra.
- Equity Collars: Wall St reinvents equity collars as a risky money spinner, from Financial Times.
- Extraterritorial Jurisdiction: Debate Intensifies as to Whether the Bankruptcy Code’s Avoidance Provisions Apply Extraterritorially, by Mark Douglas and Charlie Oellermann (Jones Day), via JD Supra.
- Prof. Richard Epstein: A wonderful tribute to a most generous man, University of Chicago Law School’s Professor Richard Epstein. Celebrating Richard Epstein, from U of C Law School Website.
- Retail Mall Distress: Retail Redevelopment: Oh, What a Tangled Web We Lawyers Must Unweave, by Ira Teicher (Stroock & Stroock & Lavan), via Law.com.
- Substantive Consolidation: Has Partial Substantive Consolidation Taken Off with Republic Airways Holdings?, by David Dyhouse (Patterson Belknap), via JD Supra.
- Usury: Usury Bites—A Refresher on an Easily Overlooked Issue in the Restructuring and Private Equity Arenas, from Glenn West (Weil Bankruptcy Blog).
- Weinstein BK: Can a license agreement related to the Hotel Mumbai movie that was rescinded by virtue of an uncontested letter sent to The Weinstein Co prepetition still be sold in the 363 Sale. This adversary complaint seeks that answer. Adv. Cplt. No. 18-50397, Hotel Mumbai Pty Ltd. v. TWC LLC.
- Anne Frank: Anne Frank House banned Jewish employee from wearing skullcap at work, from Daily Mail.
- Athletic Performance and Gender: “Your physical limits are actually mediated by your brain. In most instances, dropping out is a decision.” Why Men Quit and Women Don’t, from NYT.
- Blues in Chicago: When the blues electrified Chicago, from The Reader.
- Garbage Dumps: The world is scrambling now that China is refusing to be a trash dumping ground, from CNBC.
- Magic: David Copperfield forced to reveal secret of vanishing trick as he is sued by British audience member, from Sky News.
- Parenting: Why Do Parents Cheat at Family Board Games? To Lose as Fast as Possible, from WSJ.
- Sleep: Are you a ‘night owl?’ Regularly staying up late could be deadly, study finds, from CNBC.