Monthly Archives: December 2015

LBOs, BODs, and Fraudulent Transfers: Judge Gerber Clarifies When a Board Has Actual Intent to Hinder, Delay or Defraud Creditors in a Prepetition Leveraged Buyout in In re Lyondell Chemical Co.

By Evan T. Miller, Esq.

Judge Gerber, a bankruptcy judge sitting in the Southern District of New York, recently issued an opinion denying in part and granting in part motions to dismiss filed by fraudulent transfer defendants in three separate adversary proceedings. Continue reading

How Much Control Must a Bank Exert to be Considered an Initial Transferee Under 11 U.S.C. § 550? Can Substantive Consolidation be Applied Nunc Pro Tunc to Help ‘Create’ an Avoidance Action? Chief Judge Frank (Bankr. E.D. Pa.) Provides an Answer in In re Universal Marketing, Inc.

By Evan T. Miller, Esq.

Chief Judge Frank of the Bankruptcy Court for the Eastern District of Pennsylvania recently issued an opinion in Goldstein v. Wilmington Savings Fund Society (In re Universal Marketing, Inc.) that deals with certain issues not often seen in avoidance actions.  Specifically, the opinion touches upon the level of control or dominion that a bank must exercise over a disputed conveyance for purposes of determining whether it was an “initial transferee” under 11 U.S.C. § 550. Continue reading

Chief Judge Stark (D. Del.) Issues a Pair of Opinions Addressing New Value, Ordinary Course of Business, and Earmarking Defenses (Part II)

By Evan T. Miller, Esq.

“Payment Plan” Payments Not Necessarily Ordinary

The second of Chief Judge Stark’s two September opinions is Prudential Real Estate v. Burtch (In re AE Liquidation, Inc.), 2015 WL 5301553 (D. Del. Sept. 10, 2015). Continue reading