Click on the link below to read articles written by attorneys in Jager Smith's Bankruptcy and Restructuring Group
- What Happens When a "Legal" Marijuana Business Goes Up in Smoke?
Timothy J. Durken recently wrote an article on what happens when the boom of legal marijuana goes bust for a grower, dispensary or its stakeholders goes up in smoke. The answer is not a straight-forward one because federal bankruptcy is off the table.
- Bitcoins Are Not U.S. Dollars: What Does the Ruling in the HashFast Bankruptcy Mean?
At stake in the HashFast bankruptcy is whether the trustee can recover 3,000 bitcoins as fraudulent transfers (now worth approximately $1.3 million) or if he is limited to recovering the value of the bitcoin in U.S. dollars at the time of the transfer ($363,861.43) under Section 550(a) of the Bankruptcy Code. Steven C. Reingold and Timothy J. Durken explore what the Court decided when it held that bitcoins are not U.S. dollars (or the equivalent of U.S. dollars) and its reasoning that it was unnecessary to determine whether bitcoins are currency or a commodity for purposes of the § 550(a) issue.
- $1.5 Billion Mistake: Inadvertent Filing of UCC-3 Termination Statement Leaves Lenders Unsecured in General Motors' Bankruptcy
Timothy J. Durken recently wrote an article that was published in the Spring 2015 edition of the Massachusetts Bar Association's Complex Commercial Litigation Section newsletter, "ComCom Quarterly". The article begins on page four, and continues onto page ten of the newsletter.
- IP Licensee Rights Eclipse Foreign Insolvency Law in U.S. Chapter 15 Bankruptcy Proceeding
Timothy J. Durken wrote an article that was published in the Winter 2015 edition of the Massachusetts Bar Association's Complex Commercial Litigation Section newsletter, "ComCom Quarterly". The article begins on page two, and continues onto page eight of the newsletter.
- The Clock Runs Out on Federal-Mogul's Asbestos PI Trust's Wrongful Death Action
Steven C. Reingold and Timothy J. Durken write in the May 2014 edition of the ABI Journal about the effect of bankruptcy, the automatic stay and plan confirmation on the running of state law statutes of limitations. Not understanding these rules could lead to unintended and disastrous consequences.
- Ten Things You Need to Know About Intellectual Property Licenses in Bankruptcy
Timothy J. Durken explains that as developing, protecting and using intellectual property becomes increasingly critical to today’s businesses, it is important to understand how intellectual property licenses are treated in bankruptcy.
- Gone Baby Gone - Recovery of Stolen Bitcoins in Mt. Gox Bankruptcy
As Timothy J. Durken explains, Mt. Gox filed for bankruptcy protection in Japan, alleging that nearly all of the exchanges’ 850,000 bitcoins worth half-a-billon dollars had been looted by hackers, and customers were left asking whether any of their bitcoins are recoverable.
- You've Been WARNed: Private Equity Liability for Portfolio Company Layoffs
Jonathan M. Horne recently wrote an article that was published in the February 2014 edition of the ABI Journal.
- Credit Bid Capped In Charged Fisker Bankruptcy Auction
Timothy J. Durken outlines that the recent Delaware Bankruptcy Court decision in In re Fisker Automotive Holdings, Inc. is not a sweeping threat to a secured creditor’s right to credit bid for its collateral, but is a roadmap to limit credit bidding before the validity and extent of the liens has been decided—particularly in an expedited sale to the secured lender that freezes out competitive bidding at the beginning of the case.
- Lawsuit Against Lyondell Shareholders for Repayment of LBO Proceeds Survives Motion to Dismiss
Timothy J. Durken examines the SDNY Bankruptcy Court’s Lyondell decision holding that Section 546(e)’s safe harbor for settlement payments of securities transactions does not apply to or preempt a state law constructive fraudulent transfer action seeking to recover LBO payments to shareholders and ruling on other LBO and fraudulent transfer issues.
- "Including" vs. "Including Without Limitation": First Circuit's Lesson on Precision in Loan Contract Drafting
Timothy J. Durken discusses a decision in the First Circuit Court of Appeals which highlights the necessity to precisely draft loan contract language to allocate liability between the borrower and the lender in VFC Partners 26, LLC v. Cadlerocks Centennial Drive, LLC.
Second Circuit Rules that Foreign Debtors Must Have Place of Business or Property in the United States for Recognition of a Foreign Proceeding Under Chapter 15 of the Bankruptcy Code
Timothy J. Durken discusses the Second Circuit Court of Appeals holding in the In re Barnet proceedings that a foreign debtor must have a place of business or property in the United States—as required by 11 U.S.C. § 109(a)—for recognition of its “foreign proceeding” in a United States court under Chapter 15 of the Bankruptcy Code.
Bankruptcy Claims Trading Gets Dirtier as Third Circuit in KB Toys Rules That §502(d) Disallowance Cannot be "Washed" from Claims
Timothy J. Durken examines the the Third Circuit holding that bankruptcy “claims” subject to disallowance under § 502(d) in the hands of a claimant who received recoverable property or an avoidable transfer and failed to return it to the estate are “similarly disallowable in the hands of a subsequent transferee.
ResCap Bankruptcy Judge Holds that Unamortized Original Issue Discount in Fair Value Debt for Debt Exchange Not Disallowed Under §502(b)(2)
Timothy J. Durken discusses that in a case of first impression, the Southern District of New York Bankruptcy Court in In re Residential Capital, LLC held that unamortized original issue discount (“OID”) created in a “fair value” debt-for-debt exchange was not disallowed under Bankruptcy Code § 502(b)(2).
- Quantum Physics and Speed of Light at the Delaware Bankruptcy Court Twenty Days of Prepetition Electricity Not Entitled To §503(b)(9) Administrative Priority in Bankruptcy
Timothy J. Durken examines the Delaware Bankruptcy Court holding that “electricity” provided in the 20 days prior to a debtor's bankruptcy filing is not a “good” entitled to an administrative priority under § 507(b)(9) of the Bankruptcy Code.
- Private Equity Funds May Be Liable for Pension Obligations of their Portfolio Companies under the Groundbreaking First Circuit Court of Appeals' Sun Capital Partners Decision
Timothy J. Durken examines the decision by the First Circuit Court of Appeals in Sun Capital Partners III, LP v. New England Teamsters & Trucking Industry Pension Fund, which opened the door for private equity funds to be liable for their portfolio companies’ unfunded pension obligations.