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Does A Post-Petition Draw On A Letter Of Credit Affect Subsequent New Value Under Section 547(c)(4)? A Closer Look At The Effect Of Post-Petition Payments In The Wake Of Friedman’s

Pirinate Consulting Grp., LLC v. Styron LLC (In re Newpage Corp., et al.), Adv. Proc. No. 13-52443 (KG), 2014 WL 4948421 (Bankr. D. Del. Oct. 1, 2014)

In the wake of the Third Circuit’s Friedman’s opinion, the Court in this decision addressed whether a preference defendant who draws on a letter of credit post-petition may still credit the relevant amounts as subsequent new value under section 547(c)(4) of the Bankruptcy Code.  In denying cross motions for summary judgment on the issue, Judge Kevin Gross illustrated that Friedman’s does not provide a bright line rule in all… Read More

Equitable Subordination Relief Granted; Recharacterization Relief Denied

U.S. v. State Street Bank and Trust Co., as Trustee for Junior Subordinated Secured PIK Notes, et al. (In re Scott Cable Communications, Inc.), Adv. Proc. No. 01-4605 (KJC), 2014 WL 5298031 (Bankr. D. Del. Oct. 15, 2014).

This recent and lengthy 90-page Opinion by the Honorable Kevin J. Carey arises from the chapter 11 proceedings of Scott Cable Communications, Inc. (“Scott Cable” or the “Company”) and concerns an adversary complaint in which the United States of America, on behalf of the Internal Revenue Service (the “Government” or the “IRS”), sought to recharacterize or equitably subordinate… Read More

Coal Supply Agreement Held Executory; Pre-petition Payments Thereunder Not Recoverable As Preferences

Pirinate Consulting Group, LLC v. Avoca Bement Corp. (In re Newpage Corp.), Adv. No. 13-52196 (KG), 2014 WL 4948215 (Bankr. D. Del. Oct. 1, 2014)

In this short Memorandum Opinion, Judge Gross was called upon to determine the executory nature of a pre-petition coal supply agreement (the “Coal Supply Agreement”) in order to decide whether certain pre-petition payments to the non-debtor contract counterparty were preferential.  In rendering its decision, the Court relied heavily upon the principles set forth by the Third Circuit in Sharon Steel Corp. v. Nat’l Fuel Gas Distrib. Corp., 872 F.2d 36, 39-40… Read More

Short History of Dealings? No More Gap Filling for Ordinary Course of Business Defense

Stanziale, Jr. v. Southern Steel & Supply, L.L.C. (In re Conex Holdings, LLC), Adv. No. 12-51211 (CSS), 2014 WL 5139240 (Bankr. D. Del. Oct. 14, 2014)

In this recent Opinion from the Honorable Christopher S. Sontchi, the Court was presented with cross-motions for summary judgment, both seeking a determination that six preferential transfers paid to the defendant by the debtor qualified for the ordinary course of business defense under section 547(c)(2) of the Bankruptcy Code.  Importantly, the transfers constituted the totality of the parties’ relationship.  In rendering His Honor’s Opinion denying both summary judgment requests, the… Read More

With High Bar For WARN Act’s “Single Employer” Standard, Delaware District Court Affirms Summary Judgment

Czyzewski v. Sun Capital Partners, Inc. (In re Jevic Holding Corp.), No. 13-1127-SLR (D. Del. Sept. 29, 2014)

In this Memorandum, arising from the bankruptcy proceedings of Jevic Holding Corp. and its affiliates (together, the “Debtors”), Delaware’s District Court affirmed the Bankruptcy Court’s holding that appellee Sun Capital Partners, Inc. (“Appellee”) was not a “single employer” with debtor Jevic Transportation Inc. (“Jevic”) for purposes of claims asserted under the federal and New Jersey Worker Adjustment… Read More

Vacant No More – Judge Walsh’s Successor Announced

The Office of the Circuit Executive for the United States Third Circuit announced today that Laurie Selber Silverstein, Esq., of Potter Anderson Corroon LLP, has been tentatively selected to fill Judge Walsh’s vacant seat on the Delaware Bankruptcy Court following His Honor’s retirement at the end of this year.  Ms. Silverstein currently heads the Bankruptcy and Corporate Restructuring practice of Potter Anderson and has over 27 years of experience in the field.

Plaintiff Successfully Obtains Venue Transfer Given Change in Circumstances; District Court Sua Sponte Transfers Venue of Related Cases

Zazzali v. Wavetronix LLC (In re DBSI, Inc.), No. 12-cv-1211 (GMS), et al. (D. Del. Sept. 25, 2014)

This Memorandum Opinion issued by Judge Sleet of the Delaware District Court relates to multiple bankruptcy and securities proceedings pending in Delaware stemming from the alleged Ponzi scheme perpetrated by directors of the DBSI entities.  The bankruptcy actions (collectively, the “Bankruptcy Cases”) at issue are: (i) a declaratory action commenced by several parties, including Wavetronix LLC, (collectively, the “Moving Parties”) related to investments, promissory notes and membership interests in or made by a DBSI debtor; and (ii) an adversary proceeding commenced by… Read More

Effective October 16, 2014, Delaware District Court Imposes New Filing and Service Deadline

Pursuant to the Delaware District Court’s October 2, 2014 Standing Order, all electronic transmissions of documents (including, but not limited to, motions, briefs, appendices, and discovery responses) must be completed by 6:00 p.m. (Eastern time) in order to be considered timely filed and served that day.  Notwithstanding the foregoing, all electronic transmissions of initial pleadings must be completed prior to midnight Eastern time in order to be considered timely filed that day.  Please refer to the Standing Order and the Court’s Revised Administrative Procedures Governing Filing and Service by Electronic Means for additional information.

What Does It Mean to “Recover” Property (or the Value Thereof) for the Benefit of the Estate?

In re Allen, No. 13-3543, 2014 WL 4783085 (3d Cir. Sept. 26, 2014)

The Third Circuit was recently given the opportunity to explore what is required for “recovery” of property for the benefit of an estate under section 550 of the Bankruptcy Code.  In its own Florida bankruptcy proceeding, Advanced Telecommunication Network (“ATN”) avoided a transfer to Daniel W. Allen, Sr. (“Allen”), one of its former owners, and obtained a recovery order pursuant to section 550.  ATN pursued collection in the Florida courts but Allen actively impeded ATN’s efforts by transferring funds to trust accounts located in the Cook… Read More

Sword of Damocles Trumped By Finality in Confirmation Order

On April 23, 2013, the Delaware Bankruptcy Court reopened the bankruptcy case of reorganized debtor Northstar Iron Horse, LLC (“Iron Horse”) in order to consider a creditor’s request for a Rule 2004 examination of Iron Horse and two other affiliated reorganized debtors.  The request related to the creditor’s attempt to augment the distribution it received on account of its claim pursuant to the confirmed plan by recovering the proceeds of a post-confirmation settlement reached between Iron Horse and its insurance company, ACE American Insurance Company (“ACE”).  In this Opinion, Judge Shannon denied the Rule 2004… Read More