Getting Noticed in the Digital Age: Delaware Bankruptcy Court Finds Email Notice Satisfies Due Process but Not Rule 2002

In re Cyber Litigation Inc., 2021 WL 4927550 (Bankr. D. Del. Oct. 21, 2021)

In this Memorandum Opinion, Judge Goldblatt of the Delaware Bankruptcy Court considered whether a bar date notice sent via email to the principal of an unsecured creditor was sufficient to disallow the creditor’s untimely proof of claim. The Court ultimately concluded that the email notice comported with constitutional due process standards but did not meet the requirements of Bankruptcy Rule 2002, which instructs that such notices be provided to creditors by mail. As a result, the debtor’s timeliness objection was… Read More

Third Circuit Reversal Paves the Way For NextEra to Potentially Recover Administrative Expenses Incurred in Connection With Failed Merger

In re Energy Future Holdings Corp., No. 19-3492, 2021 WL 957301 (3d Cir. Mar. 15, 2021)

In this precedential opinion, the United States Court of Appeals for the Third Circuit (the “Third Circuit”) reversed the decisions of the Delaware Bankruptcy and District Courts denying the application filed by NextEra Energy, Inc. (“NextEra”) for $60 million in administrative expenses under Section 503(b)(1)(A) of the Bankruptcy Code in connection with a sale that ultimately did not go through.  

The dispute arose in the chapter 11 bankruptcy cases of Energy Future… Read More

Delaware District Court Disagrees with Bankruptcy Court’s Ruling and Holds That Committee’s Challenge Rights Survived Entry of the Sale Order and Consummation of Sale

Emerald Capital Advisors v. Victory Park Capital Advisors, LLC, et al. (In re Katy Industries, Inc.), 18-cv-01081 (D. Del. 2019)

In this decision, the Delaware District Court reversed in part the Delaware Bankruptcy Court’s July 6, 2018 ruling issued in the chapter 11 cases of In re Katy Industries, Inc. dismissing with prejudice the Committee’s complaint for, among other things, recharacterization and equitable subordination of $7.5 million of the secured lenders’ claim despite clear language in the Sale Order preserving the Committee’s challenge rights.  In reversing and remanding to the Bankruptcy Court, Chief Judge Stark held… Read More

“Straddling the Line”: Delaware Bankruptcy Court Rules That Not All Tax Liabilities Incurred During a Debtor’s Petition Year are Eligible for Administrative Expense Priority

In re Affirmative Insurance Holdings, Inc., Case No. 15-12136 (CSS), 2019 WL 5173773 (Bankr. D. Del. Oct. 15, 2019).

In this Opinion, Chief Judge Sontchi ruled that tax liabilities incurred by a corporation during a year that “straddles” the petition date should be bifurcated, such that tax liabilities stemming from post-petition events are afforded administrative expense priority, whereas tax liabilities stemming from pre-petition events are afforded general unsecured status.  In so doing, his Honor departed from the previous practice of affording administrative expense priority to tax liabilities incurred by a corporate debtor during the year of its petition date in… Read More

Insider’s Scoop: Judge Silverstein Imposes Heightened Standard Regarding Appointment of Future Claims Representative

In re Imerys Talc America, Inc., et al., No. 19-10289 (Bankr. D. Del. May 8, 2019).

In this Bench Ruling, Judge Silverstein departed from a long line of cases concerning the applicable standard of scrutiny when evaluating the candidacy of a proposed future claims representative (“FCR”).

Imerys Talc America, Inc. and certain of its affiliated entities (the “Debtors”) filed their chapter 11 petitions in the Delaware Bankruptcy Court on February 13, 2019.  On February 27, the Debtors filed a motion to appoint James L. Patton, Jr. as the Legal Representative for Future Talc Personal Injury Claimants. … Read More

Delaware Bankruptcy Court Rejects Per Se Premise that a Discretionary Bonus Payment Can Never Be on Account of “Value”

Jalbert v. Flanagan, et al. (In re F-Squared Investment Management, LLC), No. 15-11469 (LSS), 2019 WL 2051005 (Bankr. D. Del. May 7, 2019).

In this Opinion, Judge Silverstein granted in part and denied in part the motions of Brian Flanagan, Matthew Landon, Patrick Coyle, and Scott Kearney (collectively, the “Defendants”)  to dismiss certain fraudulent transfer and insider preference claims brought by the Trustee for the Debtors’ (defined below) liquidating trust (the “Trustee”).  In so doing, Judge Silverstein rejected the Trustee’s premise that an entirely discretionary bonus can never be made in exchange for value.

F-Squared… Read More

On a Mission: Supreme Court Clarifies Effect of Rejection of Executory Contract

Mission Prod. Hldgs., Inc. v. Tempnology, LLC, No. 17-1657 (2019).

In Mission Prod. Hldgs., Inc. v. Tempnology, LLC, the United States Supreme Court resolved a long-standing Circuit Court split in holding that a debtor’s rejection of an executory contract does not eliminate a contract counterparty’s right to use certain debtor trademarks provided thereunder.  Rather, according to the Court, following the debtor’s rejection of such contract, the counterparty retains the rights it received pursuant to the terms of the underlying agreement and applicable nonbankruptcy law.

Generally, Mission Product Holdings, Inc. (“Mission”) entered into a contract with Tempnology,… Read More

A Narrow Reading of, and Refusal to Extend, Granfinanciera and Stern – Bankruptcy Courts May Enter Final Judgments in Fraudulent Transfer Actions against Defendants Who Have Not Filed Proofs of Claim

Paragon Litigation Trust v. Noble Corp. plc, et al. (In re Paragon Offshore plc, et al.), No. 17-51882 (CSS), 2019 WL 1112298 (Bank. D. Del…. Read More