The Second Circuit's decision in In re BGI, Inc. extended the doctrine of equitable mootness to Chapter 11 liquidation proceedings. Previously, the doctrine had only been applied to Chapter 11 reorganizations in the Second Circuit. The decision recognized that substantial interests favor preventing tardy disruption of confirmed and substantially consummated Chapter 11 liquidation plans, just as with reorganization plans. While other circuits have also applied equitable mootness to liquidations, its application varies between circuits, with some being more favorable to creditors and others more favorable to debtors.
The Individual Chapter 11 Double Whammy CondundrumJanine Lee
1) The Sixth Circuit held that the absolute priority rule continues to apply to individual debtors in Chapter 11 bankruptcy, meaning they can only retain post-petition property and not pre-petition property if creditors are not paid in full.
2) The case involved an individual debtor, Cardin, who owed over $1 million to Ice House but proposed a bankruptcy plan that would allow him to keep pre-petition assets while only paying Ice House $124,000.
3) The Sixth Circuit found that the 2005 bankruptcy law amendments subject individual Chapter 11 debtors to the "double whammy" of having to use both pre-petition property and post-filing earnings to repay creditors in order to
Doc770 order confirming trustee's amended plan of liquidation for the debtormalp2009
This order confirms the Trustee's Amended Plan of Liquidation for the debtor FirstPlus Financial Group, Inc. The order finds that:
1) The Plan complies with the applicable provisions of the Bankruptcy Code.
2) All parties received proper notice of the Plan and Confirmation Hearing.
3) The classification of claims and interests under the Plan satisfies the requirements of the Bankruptcy Code.
4) The Trustee has met his burden of proof to confirm the Plan.
Dixie Holdings filed an ex parte application seeking an extension of time to respond to Medical Marijuana Inc.'s petition to compel arbitration. Medical Marijuana Inc. opposed the application, arguing that Dixie is actually seeking relief from default as its time to respond had expired over two weeks prior. Medical Marijuana Inc. argued that Dixie failed to meet the requirements under CCP 473(b) to obtain relief from default, as Dixie did not provide specific facts demonstrating mistake, inadvertence, surprise or excusable neglect. Medical Marijuana Inc. also argued that Dixie made misstatements in its application and that there is no good cause to grant the relief sought.
This document summarizes a court case, In re Bataa/Kierland, LLC, that examines the court's power to disqualify votes on chapter 11 reorganization plans under section 1126(e) of the Bankruptcy Code. The court provided an in-depth analysis of the historical context and legislative intent behind section 1126(e), which was meant to allow courts to override votes made in bad faith. However, more recent cases like Figter have defined bad faith very narrowly, focusing only on obvious fraud rather than votes made to serve ulterior motives beyond self-interest. As a result, creditors now have more flexibility to purchase claims in other classes to manipulate votes, so long as there is no overt
The Impact of the PSLRA on Post-Discovery Amendment of PleadingsWendy Couture
This document summarizes the impact of the Private Securities Litigation Reform Act (PSLRA) on amending pleadings after discovery in securities fraud cases. It discusses how the PSLRA requires heightened pleading standards and stays discovery during motions to dismiss. After a claim survives dismissal, courts take different approaches to post-discovery amendment. Some invite amendment if discovery reveals new evidence, while others view amendment as circumventing the PSLRA's pleading requirements. The document analyzes relevant Federal Rules of Civil Procedure and case law on this issue. It concludes by noting an upcoming Ninth Circuit case that could provide guidance on the interaction between the PSLRA and post-discovery amendment.
Federal Court Denying Motion by Satish Vuppalapati, Madhavi Vuppalapati and A...mh37o
Federal court denied the motion by Satish Vuppalapati, Madhavi Vuppalapati and Anandhan Jayaraman. Court confirmed that PISL India and PISl PA are one and the same companies.
This document is an affidavit from Mark Weinsten in support of LodgeNet Interactive Corporation filing for Chapter 11 bankruptcy and the relief sought in various first day motions. It provides background on LodgeNet's financial difficulties and proposed restructuring, including a $60 million investment from Colony Capital in exchange for 100% ownership of reorganized LodgeNet under a prepackaged Chapter 11 plan that has already received creditor support. The affidavit also summarizes various motions seeking court approval of procedures to allow LodgeNet to continue operating in bankruptcy with minimal disruption.
The Individual Chapter 11 Double Whammy CondundrumJanine Lee
1) The Sixth Circuit held that the absolute priority rule continues to apply to individual debtors in Chapter 11 bankruptcy, meaning they can only retain post-petition property and not pre-petition property if creditors are not paid in full.
2) The case involved an individual debtor, Cardin, who owed over $1 million to Ice House but proposed a bankruptcy plan that would allow him to keep pre-petition assets while only paying Ice House $124,000.
3) The Sixth Circuit found that the 2005 bankruptcy law amendments subject individual Chapter 11 debtors to the "double whammy" of having to use both pre-petition property and post-filing earnings to repay creditors in order to
Doc770 order confirming trustee's amended plan of liquidation for the debtormalp2009
This order confirms the Trustee's Amended Plan of Liquidation for the debtor FirstPlus Financial Group, Inc. The order finds that:
1) The Plan complies with the applicable provisions of the Bankruptcy Code.
2) All parties received proper notice of the Plan and Confirmation Hearing.
3) The classification of claims and interests under the Plan satisfies the requirements of the Bankruptcy Code.
4) The Trustee has met his burden of proof to confirm the Plan.
Dixie Holdings filed an ex parte application seeking an extension of time to respond to Medical Marijuana Inc.'s petition to compel arbitration. Medical Marijuana Inc. opposed the application, arguing that Dixie is actually seeking relief from default as its time to respond had expired over two weeks prior. Medical Marijuana Inc. argued that Dixie failed to meet the requirements under CCP 473(b) to obtain relief from default, as Dixie did not provide specific facts demonstrating mistake, inadvertence, surprise or excusable neglect. Medical Marijuana Inc. also argued that Dixie made misstatements in its application and that there is no good cause to grant the relief sought.
This document summarizes a court case, In re Bataa/Kierland, LLC, that examines the court's power to disqualify votes on chapter 11 reorganization plans under section 1126(e) of the Bankruptcy Code. The court provided an in-depth analysis of the historical context and legislative intent behind section 1126(e), which was meant to allow courts to override votes made in bad faith. However, more recent cases like Figter have defined bad faith very narrowly, focusing only on obvious fraud rather than votes made to serve ulterior motives beyond self-interest. As a result, creditors now have more flexibility to purchase claims in other classes to manipulate votes, so long as there is no overt
The Impact of the PSLRA on Post-Discovery Amendment of PleadingsWendy Couture
This document summarizes the impact of the Private Securities Litigation Reform Act (PSLRA) on amending pleadings after discovery in securities fraud cases. It discusses how the PSLRA requires heightened pleading standards and stays discovery during motions to dismiss. After a claim survives dismissal, courts take different approaches to post-discovery amendment. Some invite amendment if discovery reveals new evidence, while others view amendment as circumventing the PSLRA's pleading requirements. The document analyzes relevant Federal Rules of Civil Procedure and case law on this issue. It concludes by noting an upcoming Ninth Circuit case that could provide guidance on the interaction between the PSLRA and post-discovery amendment.
Federal Court Denying Motion by Satish Vuppalapati, Madhavi Vuppalapati and A...mh37o
Federal court denied the motion by Satish Vuppalapati, Madhavi Vuppalapati and Anandhan Jayaraman. Court confirmed that PISL India and PISl PA are one and the same companies.
This document is an affidavit from Mark Weinsten in support of LodgeNet Interactive Corporation filing for Chapter 11 bankruptcy and the relief sought in various first day motions. It provides background on LodgeNet's financial difficulties and proposed restructuring, including a $60 million investment from Colony Capital in exchange for 100% ownership of reorganized LodgeNet under a prepackaged Chapter 11 plan that has already received creditor support. The affidavit also summarizes various motions seeking court approval of procedures to allow LodgeNet to continue operating in bankruptcy with minimal disruption.
The U.S. Trustee plays a major role in monitoring Chapter 11 cases by overseeing the debtor's operations and financial reporting. The U.S. Trustee conducts creditor meetings, ensures compliance with reporting requirements, and can seek to convert a case or have a trustee appointed for noncompliance. A trustee can be appointed if the debtor is dishonest or mismanaging the business, or a party requests it. The trustee then takes over management of the business from the debtor in possession and must file a reorganization plan.
This newsletter summarizes recent court cases related to reinsurance:
1) The Third Circuit ruled that a reinsurer did not need to demonstrate prejudice from late notice of loss given by the reinsured in order to be relieved of indemnity obligations, applying New York law.
2) A New York federal court confirmed multiple arbitration awards in favor of a cedent, rejecting the reinsurer's arguments to vacate the awards.
3) A Wisconsin federal court transferred a dispute over arbitrator selection and consolidation to New York based on forum selection clauses in the reinsurance contracts.
'Madhavi Vuppalpati & Anandhan Jayaraman defeated in their attempt to derail ...mh37o
Madhavi Vuppalpati and her husband Anandhan Jayaraman are defeated in their attempt to derail the trial in Washington Court with this denial by Hon Madam Justice Marsha j. Pechman
Stephen ware arbitration agreements in bankruptcy 2018 marchStephen Ware
This document summarizes arbitration agreements in bankruptcy. It discusses how the Federal Arbitration Act generally requires enforcement of pre-dispute arbitration agreements, even for federal statutory claims like those arising in bankruptcy. However, courts have discretion to not enforce agreements to arbitrate "core" bankruptcy proceedings if doing so would conflict with the purposes of the Bankruptcy Code. The document outlines cases where courts have and have not enforced arbitration of core bankruptcy matters, which remains an unsettled area of law that depends on the specific claims and facts of each case. It also discusses how rejection of an executory contract does not invalidate its arbitration clause.
- Cordillera Golf Club, LLC filed for Chapter 11 bankruptcy and sought to retain PricewaterhouseCoopers LLP as its financial advisor.
- PwC has expertise in financial advisory services for distressed companies and experience working on bankruptcy cases.
- The application requests the court approve PwC's retention to provide services such as evaluating strategic alternatives, advising on cash flow projections, and assisting with required bankruptcy reports and schedules.
The debtor, Cordillera Golf Club, LLC, filed a motion seeking approval of procedures for interim compensation and reimbursement of expenses for professionals retained in the chapter 11 case. The motion requests that professionals be allowed to submit monthly fee applications for payment of 80% of fees and 100% of expenses, with interim fee applications submitted every three months. The procedures are consistent with those approved in other large chapter 11 cases and will help streamline the professional compensation process.
The debtor, Cordillera Golf Club, LLC, filed a motion seeking approval of procedures for interim compensation and reimbursement of expenses for professionals retained in the chapter 11 case. The motion requests that professionals be allowed to submit monthly fee applications for payment of 80% of fees and 100% of expenses, with interim fee applications submitted every three months. The procedures are intended to streamline the payment process in this large chapter 11 case.
The Court of Appeal in Mac-Attack held that the NT Act impliedly prohibits making more than one payment claim for the same contractual obligation or including in a later claim amounts from an earlier unpaid claim. This was a misinterpretation of the Act going to the adjudicator's jurisdiction, invalidating their determination. The court also held that an adjudicator's satisfaction as to criteria in section 33(1)(a), including timeliness, must be reasonable and correctly understand the law. The article analyses and critiques several aspects of the Court of Appeal's decision.
This case involves a dispute over entitlement to a partial refund of a special assessment paid into a fund to repair defects in a condominium building. The previous owners, who paid the special assessment, sold the property to the current owners. After the repairs were completed, there was a refund remaining in the fund. Both the previous and current owners claimed entitlement to the refund. The court found that the sale contract between the parties implicitly allocated the risk of any refund or future assessment to the purchasers. As such, the court ruled that the current owners were entitled to the refund as there was a valid contract between the parties providing a juristic reason for the enrichment.
This document is an amended plan of reorganization filed in the United States Bankruptcy Court for LodgeNet Interactive Corporation and its affiliates, who are debtors in Chapter 11 bankruptcy cases. The plan proposes reorganizing the debtors' capital structure and financial obligations under Chapter 11 of the Bankruptcy Code. It defines key terms used in the plan and establishes classes of claims and interests to determine how prepetition obligations will be treated under the plan.
The decision by the U.S. District Court for the Southern District of Ohio. EQT had leased land from Alex Cooper, et al with an initial five-year term. The lease provided for a five-year extension. It also required EQT to drill at least one well on/under the property during the first five-year lease. EQT failed to drill a well in the first term but instead elected to extend the lease for an additional five years. The federal judge found that EQT has the right to extend the lease even if they didn't drill a well during the first term.
121815 - OBJECTION TO 120815 ORDER ON OBJECTION (Townsend Matter)VogelDenise
POWER WITH "WE THE PEOPLE" - KNOW YOUR LEGAL/LAWFUL RIGHTS TO OVERTHROW THE UNITED STATES OF AMERICA'S DESPOTISM GOVERNMENT and have a GOVERNMENT that WORKS for "WE THE PEOPLE!"
DECLARATION OF INDEPENDENCE - Overthrowing Despotism, Political Corruption, Judicial Corruption/Injustices. . . .HEALING and RESTORING a NATION!
This document summarizes a court case between Jacqueline Veverka and Royal Caribbean Cruises regarding injuries sustained by Veverka during a cruise. Royal Caribbean filed a motion for summary judgment to dismiss the case. Veverka slipped on liquid left by Royal Caribbean employees and broke her hip. She underwent surgery and treatment but filed the case after contractual time limits. The court must determine if contractual limitations on liability and time to file a claim apply.
Mandamus actions in immigration avoiding dismissal and proving the caseUmesh Heendeniya
This document provides guidance on filing mandamus actions in federal court to compel government agencies to act on immigration matters. It discusses the three required elements for a successful mandamus case: (1) the plaintiff has a clear right to the requested relief based on statutory rights created by the Immigration and Nationality Act (INA); (2) the defendant agency has a mandatory duty to take the requested action, such as adjudicating an application; and (3) no other remedy is available. The document provides examples from case law and analyzes how courts have approached determining whether these elements are met in different immigration contexts, such as application adjudication delays and failure to initiate removal proceedings.
This document is a motion filed in a US bankruptcy court requesting permission to file an unredacted version of a response under seal. It summarizes that the response contains sensitive commercial information about the debtors' financial condition and restructuring negotiations. The debtors argue the information could harm ongoing negotiations and business operations if disclosed publicly. They seek to file the unredacted version under seal and make it available only to specific parties.
State of wash case mandatory arbitration clause in an insurance contract wa...Umesh Heendeniya
This case involves a dispute over whether arbitration clauses in two insurance policies issued by James River Insurance Company to the Washington State Department of Transportation (WSDOT) are enforceable. The trial court denied James River's motion to compel arbitration, finding the clauses violated state statutes prohibiting agreements that deprive state courts of jurisdiction over actions against insurers. The Supreme Court of Washington affirms, finding that the statutes are intended to protect the right to bring an original action in state court and that binding arbitration deprives courts of jurisdiction to consider the substance of disputes.
Arbitration law update, Darren-Chaker, written by leading law firm, citing case law, statute and other legal resources about recent arbitration developments.
21 st century digital learner by: Dulce SotilDulce Sotil
The document outlines several 21st century skills including creativity (using techniques like brainstorming to generate new ideas), critical thinking (effectively analyzing problems and arguments), communication (conveying ideas through oral, written, and visual means), collaboration (working respectfully with diverse teams), and information literacy (accessing, evaluating, and sharing information from multiple sources). Developing these skills can help individuals adapt to changing environments, work independently, and produce results. It also emphasizes cultural competence by respecting differences when working with others from diverse backgrounds.
The U.S. Trustee plays a major role in monitoring Chapter 11 cases by overseeing the debtor's operations and financial reporting. The U.S. Trustee conducts creditor meetings, ensures compliance with reporting requirements, and can seek to convert a case or have a trustee appointed for noncompliance. A trustee can be appointed if the debtor is dishonest or mismanaging the business, or a party requests it. The trustee then takes over management of the business from the debtor in possession and must file a reorganization plan.
This newsletter summarizes recent court cases related to reinsurance:
1) The Third Circuit ruled that a reinsurer did not need to demonstrate prejudice from late notice of loss given by the reinsured in order to be relieved of indemnity obligations, applying New York law.
2) A New York federal court confirmed multiple arbitration awards in favor of a cedent, rejecting the reinsurer's arguments to vacate the awards.
3) A Wisconsin federal court transferred a dispute over arbitrator selection and consolidation to New York based on forum selection clauses in the reinsurance contracts.
'Madhavi Vuppalpati & Anandhan Jayaraman defeated in their attempt to derail ...mh37o
Madhavi Vuppalpati and her husband Anandhan Jayaraman are defeated in their attempt to derail the trial in Washington Court with this denial by Hon Madam Justice Marsha j. Pechman
Stephen ware arbitration agreements in bankruptcy 2018 marchStephen Ware
This document summarizes arbitration agreements in bankruptcy. It discusses how the Federal Arbitration Act generally requires enforcement of pre-dispute arbitration agreements, even for federal statutory claims like those arising in bankruptcy. However, courts have discretion to not enforce agreements to arbitrate "core" bankruptcy proceedings if doing so would conflict with the purposes of the Bankruptcy Code. The document outlines cases where courts have and have not enforced arbitration of core bankruptcy matters, which remains an unsettled area of law that depends on the specific claims and facts of each case. It also discusses how rejection of an executory contract does not invalidate its arbitration clause.
- Cordillera Golf Club, LLC filed for Chapter 11 bankruptcy and sought to retain PricewaterhouseCoopers LLP as its financial advisor.
- PwC has expertise in financial advisory services for distressed companies and experience working on bankruptcy cases.
- The application requests the court approve PwC's retention to provide services such as evaluating strategic alternatives, advising on cash flow projections, and assisting with required bankruptcy reports and schedules.
The debtor, Cordillera Golf Club, LLC, filed a motion seeking approval of procedures for interim compensation and reimbursement of expenses for professionals retained in the chapter 11 case. The motion requests that professionals be allowed to submit monthly fee applications for payment of 80% of fees and 100% of expenses, with interim fee applications submitted every three months. The procedures are consistent with those approved in other large chapter 11 cases and will help streamline the professional compensation process.
The debtor, Cordillera Golf Club, LLC, filed a motion seeking approval of procedures for interim compensation and reimbursement of expenses for professionals retained in the chapter 11 case. The motion requests that professionals be allowed to submit monthly fee applications for payment of 80% of fees and 100% of expenses, with interim fee applications submitted every three months. The procedures are intended to streamline the payment process in this large chapter 11 case.
The Court of Appeal in Mac-Attack held that the NT Act impliedly prohibits making more than one payment claim for the same contractual obligation or including in a later claim amounts from an earlier unpaid claim. This was a misinterpretation of the Act going to the adjudicator's jurisdiction, invalidating their determination. The court also held that an adjudicator's satisfaction as to criteria in section 33(1)(a), including timeliness, must be reasonable and correctly understand the law. The article analyses and critiques several aspects of the Court of Appeal's decision.
This case involves a dispute over entitlement to a partial refund of a special assessment paid into a fund to repair defects in a condominium building. The previous owners, who paid the special assessment, sold the property to the current owners. After the repairs were completed, there was a refund remaining in the fund. Both the previous and current owners claimed entitlement to the refund. The court found that the sale contract between the parties implicitly allocated the risk of any refund or future assessment to the purchasers. As such, the court ruled that the current owners were entitled to the refund as there was a valid contract between the parties providing a juristic reason for the enrichment.
This document is an amended plan of reorganization filed in the United States Bankruptcy Court for LodgeNet Interactive Corporation and its affiliates, who are debtors in Chapter 11 bankruptcy cases. The plan proposes reorganizing the debtors' capital structure and financial obligations under Chapter 11 of the Bankruptcy Code. It defines key terms used in the plan and establishes classes of claims and interests to determine how prepetition obligations will be treated under the plan.
The decision by the U.S. District Court for the Southern District of Ohio. EQT had leased land from Alex Cooper, et al with an initial five-year term. The lease provided for a five-year extension. It also required EQT to drill at least one well on/under the property during the first five-year lease. EQT failed to drill a well in the first term but instead elected to extend the lease for an additional five years. The federal judge found that EQT has the right to extend the lease even if they didn't drill a well during the first term.
121815 - OBJECTION TO 120815 ORDER ON OBJECTION (Townsend Matter)VogelDenise
POWER WITH "WE THE PEOPLE" - KNOW YOUR LEGAL/LAWFUL RIGHTS TO OVERTHROW THE UNITED STATES OF AMERICA'S DESPOTISM GOVERNMENT and have a GOVERNMENT that WORKS for "WE THE PEOPLE!"
DECLARATION OF INDEPENDENCE - Overthrowing Despotism, Political Corruption, Judicial Corruption/Injustices. . . .HEALING and RESTORING a NATION!
This document summarizes a court case between Jacqueline Veverka and Royal Caribbean Cruises regarding injuries sustained by Veverka during a cruise. Royal Caribbean filed a motion for summary judgment to dismiss the case. Veverka slipped on liquid left by Royal Caribbean employees and broke her hip. She underwent surgery and treatment but filed the case after contractual time limits. The court must determine if contractual limitations on liability and time to file a claim apply.
Mandamus actions in immigration avoiding dismissal and proving the caseUmesh Heendeniya
This document provides guidance on filing mandamus actions in federal court to compel government agencies to act on immigration matters. It discusses the three required elements for a successful mandamus case: (1) the plaintiff has a clear right to the requested relief based on statutory rights created by the Immigration and Nationality Act (INA); (2) the defendant agency has a mandatory duty to take the requested action, such as adjudicating an application; and (3) no other remedy is available. The document provides examples from case law and analyzes how courts have approached determining whether these elements are met in different immigration contexts, such as application adjudication delays and failure to initiate removal proceedings.
This document is a motion filed in a US bankruptcy court requesting permission to file an unredacted version of a response under seal. It summarizes that the response contains sensitive commercial information about the debtors' financial condition and restructuring negotiations. The debtors argue the information could harm ongoing negotiations and business operations if disclosed publicly. They seek to file the unredacted version under seal and make it available only to specific parties.
State of wash case mandatory arbitration clause in an insurance contract wa...Umesh Heendeniya
This case involves a dispute over whether arbitration clauses in two insurance policies issued by James River Insurance Company to the Washington State Department of Transportation (WSDOT) are enforceable. The trial court denied James River's motion to compel arbitration, finding the clauses violated state statutes prohibiting agreements that deprive state courts of jurisdiction over actions against insurers. The Supreme Court of Washington affirms, finding that the statutes are intended to protect the right to bring an original action in state court and that binding arbitration deprives courts of jurisdiction to consider the substance of disputes.
Arbitration law update, Darren-Chaker, written by leading law firm, citing case law, statute and other legal resources about recent arbitration developments.
21 st century digital learner by: Dulce SotilDulce Sotil
The document outlines several 21st century skills including creativity (using techniques like brainstorming to generate new ideas), critical thinking (effectively analyzing problems and arguments), communication (conveying ideas through oral, written, and visual means), collaboration (working respectfully with diverse teams), and information literacy (accessing, evaluating, and sharing information from multiple sources). Developing these skills can help individuals adapt to changing environments, work independently, and produce results. It also emphasizes cultural competence by respecting differences when working with others from diverse backgrounds.
Images of 1st, 2nd and 6th belong to DreamWorks Animation
Image of K Computer belongs to Fujitsu.
Presentation made not for commercial use, but educational.
O documento descreve a geografia, história e sociedade da Grécia Antiga, desde a formação de cidades-estados devido ao terreno montanhoso, à colonização grega para escapar da falta de terras, e à divisão social em Atenas entre cidadãos, metecos e escravos.
The document contains a list of words related to movement, emotions, and everyday objects and activities. Many of the words are repeated with variations in spelling to emphasize different sounds and syllables. Overall, the list exposes young readers to foundational vocabulary through playful representations of language.
O documento resume a história da Grécia antiga, incluindo sua localização, clima, agricultura, colonização, sociedade de Atenas, governo democrático, religião, educação, filosofia, teatro, jogos, arte e arquitetura.
El documento describe las tres esferas de la vida: la esfera íntima, privada y pública. La esfera íntima corresponde a lo más profundo y reservado del ser humano. La esfera privada incluye cosas compartidas con un grupo selecto como la familia o amigos. La esfera pública es todo aquello accesible a todo el mundo. Las redes sociales hacen que los límites entre estas esferas se confundan, por lo que debemos tener claro cuál es el contenido apropiado para cada una y ser cuidadosos con lo que compartimos online.
O documento descreve aspectos da civilização grega no século V a.C., incluindo a formação de cidades-estados devido aos condicionalismos geográficos, a colonização grega no Mediterrâneo, os recursos econômicos de Atenas e sua sociedade, cultura e arte florescentes.
18ª Reunião da Câmara dos Vereadores de Paranavaíportalcaiua
O documento descreve a pauta de uma reunião ordinária do estado do Paraná, incluindo projetos de lei, requerimentos e indicações a serem discutidos. Os principais tópicos incluem projetos de lei sobre concessão de uso de imóveis, alteração de orçamento e abertura de crédito adicional, bem como requerimentos e indicações sobre obras públicas, serviços comunitários e eventos.
This document discusses trends in global poverty, inequality, demographics, debt, and the environment. It notes that while poverty has declined significantly in China and India, inequality remains high worldwide. Population is aging in developed nations. Debt levels are rising in southern Europe and selected advanced economies. Energy needs will increase substantially by 2035 due to growth in China, India, and the Middle East. Carbon emissions must be reduced to prevent global warming of over 2 degrees Celsius. Opportunities exist in renewable energy, energy efficiency, sustainable agriculture, recycling, and climate change adaptation and insurance.
Kalpesh D. Shah has over 20 years of experience in operations management, export documentation, client relationship management, and team operations. He has worked as an export administration manager at Kings Exports and Rangeela Exports for over 10 years, where he was responsible for export and import documentation, customer tracking, and meeting sales targets. Prior to that, he held project manager roles at Unitech Engineering, Shalco Industries, and N. Mohanlal & Company, where he oversaw contract work, field operations, and director reporting. He has a B.Com from Mumbai University and is proficient in accounting software and Microsoft Office applications.
cpe computadores para educar estrategia prendo y aprendo 2016.. ..
Este documento proporciona información sobre el programa Computadores para Educar en Colombia. Explica que el programa provee equipos de cómputo y formación docente a escuelas públicas para promover la equidad educativa a través de las TIC. También describe la misión y visión del programa, que busca mejorar la calidad de la educación mediante el uso de herramientas tecnológicas. El documento incluye información sobre los servicios de soporte técnico que brinda el programa a las escuelas beneficiarias.
In this keynote Valerie offered new insights and both surprising and practical ways to allow us to outsmart our limiting brain patterns to create a better future when consulting and interacting with each other.
The document discusses different ways to develop a closer relationship with God through devotional spirituality. It emphasizes focusing on God's attributes as revealed through His creation, word, and works. Specific practices include sacred reading of scripture with an open, submissive attitude rather than just for information. It also recommends meditating on God's mighty acts in history and His continual works in the present to better know and love His character. The overall goal is to be transformed into God's image through an intimate relationship with Him.
This document summarizes the management of hepatic injuries in trauma patients. It discusses that the liver is frequently injured in trauma and injuries can range from minor lacerations to major injuries involving blood vessels. Selection of nonoperative management, surgery, or damage control laparotomy depends on factors like mechanism of injury and severity of associated injuries. Surgical techniques for controlling bleeding include packing, suturing, and angiography. Complications include bile leaks, which may be managed conservatively or with stenting. Associated injuries to other organs must also be addressed in severe trauma cases. Selection criteria for damage control surgery are important.
This document is a bench ruling from a bankruptcy judge on a motion to compel arbitration related to a debtor's cash collateral motion. The judge analyzes applicable case law and determines that:
1) Whether a debtor has authority to use cash collateral is fundamentally a bankruptcy issue, not a contractual dispute.
2) The parties did not agree to arbitrate issues relating to a debtor's rights under the Bankruptcy Code, as those rights were created by Congress and differ from pre-bankruptcy contractual rights.
3) Therefore, the motion to compel arbitration of the debtor's cash collateral motion is denied, as use of cash collateral is a core bankruptcy issue not subject to the arbitration agreement.
This document discusses a bankruptcy court case regarding the sale of an internet domain name. The key points are:
1) The debtor (Heath Global) had agreed to purchase the "Invest.com" domain name from Jim Magner for $2 million in installments over two years.
2) After Heath Global missed an installment payment, Magner sent a notice purporting to terminate the agreement based on a clause allowing termination if a payment was not cured within 7 days.
3) Before the 7-day cure period expired, Heath Global filed for bankruptcy. The bankruptcy court found the agreement had automatically terminated pre-petition.
4) On appeal, the district court found that the agreement
FLSA Litigation - Federal Court - MDFL Tampa - Fee Entitlement & MootnessPollard PLLC
Lawyers in FLSA cases and particularly on the defense side should view this as a cautionary tale: Tendering a check for the wages at issue does not moot the plaintiff's claim. FLSA claims are live until there is a judgment or a settlement approved by the court. And plaintiffs DO get their fees for litigating over the issue of attorneys' fees.
Simply put: A legitimate FLSA case, a skilled attorney on the plaintiff side, and defense counsel who do not understand the applicable legal framework make for disastrous results.
This document provides notice of Patriot Coal Corporation's motion seeking court approval to conduct rights offerings as part of its chapter 11 reorganization plan. Specifically, the motion seeks authorization to enter into a backstop purchase agreement with certain funds to ensure sufficient proceeds are raised in the rights offerings. The rights offerings will allow eligible creditors to purchase new senior secured notes and warrants. The motion also seeks approval of the proposed rights offerings procedures. Objections to the motion are due by October 30, with a hearing scheduled for November 6.
The Supreme Court clarified the code’s object while keeping legislative intent in mind. The court, through this judgement, has struck a balance between creditors’ rights and debtor companies’ remedies.
Bankruptcy Alert: The Second Circuit Condemns Chapter 11 Plan “Gifting”Patton Boggs LLP
The United States Court of Appeals for the Second Circuit held on February 7, 2011, in
DISH Network Corporation v. DBSD North America, Incorporated that a so-called “gifting” plan, pursuant to which a senior creditor “gifts” a portion of its undisputed bankruptcy
recoveries/distributions to a junior class of creditors or equity holders, skipping an
intermediate objecting class, is prohibited by the absolute priority rule.
This document is an objection filed by the United States Trustee to motions filed by Petitioning Creditors and Alleged Debtors to seal certain documents filed with the court. The U.S. Trustee does not oppose sealing documents pending a ruling on whether the bankruptcy cases will proceed, but argues that any sealing should end if the court finds cause to open bankruptcy cases, as the information would then become public. The U.S. Trustee asserts that bankruptcy law favors public disclosure of information relevant to creditors and parties in interest.
2012AnnualSurveyofFifthCircuitClassActionsCases_TXBusinessLitigationJournalCole Davis
This document provides a summary of class action cases decided in 2012 by the Fifth Circuit Court of Appeals and federal district courts in Texas, Louisiana, and Mississippi. It discusses 15 cases that substantively addressed Rule 23 litigation classes and 4 settlement class cases. For the litigation class cases, only 2 of the proposed classes were certified. All 4 settlement class cases were approved. The document summarizes several notable cases involving various federal and state laws, including antitrust, ERISA, securities, bankruptcy, and consumer protection statutes. It analyzes the application of Rule 23 requirements like commonality, predominance, and cohesiveness.
This document is the defendants' closing argument in response to the plaintiffs' closing argument regarding trust documents presented in a real estate dispute. It argues that the plaintiffs' claims of fraudulent conduct by the defendant are unsupported and illogical. It asserts that the trust documents in question have no relevance to the legal issues being tried, which involve the interpretation of purchase and sale agreements for two properties. The defendant argues that the plaintiffs have presented no valid legal basis to rescind the agreements and that the evidence shows the plaintiffs were unable to complete the purchase for financial reasons.
Execution of unexecuted or compromised decreeCgemini
The document discusses the execution of compromised decrees under Indian law. It provides some key points:
1. Once a lawsuit or decree is compromised, the parties are barred from raising the same issue in court again or related issues from the same claim.
2. There are some exceptions where a compromised decree can still be executed - if the compromise was not properly recorded, if one party fulfilled their obligations but the other did not, or if there was a breach of the compromise agreement.
3. The validity of a consent decree depends on the validity of the compromise agreement it is based on. If a party can prove in court that there was no actual compromise, the court may reconsider the decree.
The document discusses the provisions related to rejection of plaints under Order 7 Rule 11 of the Code of Civil Procedure (CPC). It provides details on the various grounds under which a plaint can be rejected by the court, including if it does not disclose a cause of action, is barred by any law like the limitation act, or is not properly stamped. It notes that the power to reject a plaint can be exercised at any stage of the suit if the court believes the suit is frivolous or amounts to abuse of process. The document also discusses past court rulings and principles related to interpreting causes of action and limitation periods in order to determine whether rejection of a plaint is justified.
Doc1037 robert oneil paul ballard_todd hickman_seeking approval_settlement & ...malp2009
This document is a Trustee's Motion to Approve Compromise and Settlement with Defendants Robert O'Neal, Paul Ballard and Todd Hickman in an Adversary proceeding. The Trustee is seeking the court's approval of a settlement agreement between the Trustee and the Defendants that would allow portions of the Defendants' claims against the Debtor's estate and resolve all claims between the parties. Key terms of the settlement include allowing 75% of O'Neal's claim, 60% of Ballard's claim, and 60% of Hickman's claim. The Trustee believes the settlement is in the best interest of the estate to avoid costly and uncertain litigation.
King county-superior-court-order-on-rha-v-city-of-seattle-22421Roger Valdez
This order denies the plaintiffs' motion for summary judgment and grants the defendant's cross-motion for summary judgment. It finds that the three Seattle ordinances establishing defenses to eviction due to financial hardship during COVID-19 do not conflict with state law and are therefore not preempted. While the ordinance provision staying late fees is preempted, the rest can be harmonized with state eviction statutes as establishing substantive defenses rather than conflicting with the statutes' procedural framework. Controlling Washington precedent has established that the state eviction laws provide only procedures, not substantive rights, so local governments can permissibly provide additional defenses.
The debtor, Cordillera Golf Club, LLC, filed an application seeking approval to retain GA Keen Realty Advisors, LLC as its real estate advisor nunc pro tunc to the petition date. GA Keen Realty will assist the debtor by raising debt or equity capital to fund a reorganization plan, refinance properties, or sell properties. GA Keen Realty will receive transaction fees ranging from 2-6% of proceeds depending on the type of transaction closed. The application seeks to waive certain fee application requirements and employ GA Keen Realty under an incentive-based fee structure customary for its commercial real estate advisory services.
This document is an application filed in the United States Bankruptcy Court for the District of Delaware by Cordillera Golf Club, LLC seeking approval to retain GA Keen Realty Advisors, LLC as its real estate advisor. Cordillera Golf Club filed for Chapter 11 bankruptcy protection and requires assistance assessing the highest and best use of its owned real property and obtaining capital for its business. The application requests that GA Keen Realty be approved as Cordillera's real estate advisor nunc pro tunc to the petition date under the terms of a retention agreement between the two parties. GA Keen Realty has experience advising other debtors in bankruptcy cases and working with Cordillera since prior to the bankruptcy filing.
The document provides information about instituting a civil suit under the Code of Civil Procedure in Bangladesh. It defines what a suit is, how it is instituted by filing a plaint, and the requirements for a valid plaint. A suit must have opposing parties, a subject matter, a cause of action, and relief sought. A plaint can be rejected if it does not disclose a cause of action, has improper valuation of relief, is not properly stamped, appears barred by law, or fails to comply with filing requirements. The document also discusses the interpretation of procedural rules for instituting suits and notes that minor failures to comply should not necessarily lead to dismissal if there is no unfair intention or prejudice to the other party.
This document is an excerpt from an omnibus order written by the author for a judge regarding a credit card collection case. The order summarizes that while the plaintiff established a valid contract existed between the creditor and defendant, the plaintiff failed to provide sufficient documentation proving a valid assignment of the debt from the creditor to the plaintiff. As a result, the judge granted summary judgment for the defendant rather than the plaintiff.
When most lenders, owners and lawyers think of title insurance, they (quite rightly) think of insurance that covers risks associated with title matters. The answer is in the name,
as it were.
This newsletter summarizes two recent court cases related to reinsurance:
1) The New York Court of Appeals reversed summary judgment in a case involving allocation of an asbestos settlement between a cedent and reinsurers. The court found issues of fact around the reasonableness of the cedent's allocation assumptions.
2) The Second Circuit held that the question of whether a contract clause provides for arbitration is governed by federal common law when the Federal Arbitration Act applies through the New York Convention. The court affirmed that an insurance contract clause allowing medical examinations to determine disability was an arbitration clause.
Similar to 1-D. AlstonWritingSample FinalPaper BankruptcyLaw 141219 (20)
1. Analysis of
Beeman v. BGI Creditors’ Liquidating Trust (In re BGI, Inc.),
2014 WL 5462477 (2d Cir. 2014)
and Its Implications for Both Bankruptcy Law and Our Clients
Exam #: 124
[Alson Alston]
Bankruptcy Law
Fall Semester 2014
2. 1
TO: Juliet Attorney, Esq., Senior Partner, ACME Law Firm LLP
FROM: [Alson Alston] Exam #124, Esq., Junior Partner, ACME Law Firm LLP
DATE: December 16, 2014
RE: Analysis of Beeman v. BGI Creditors’ Liquidating Trust (In re BGI, Inc.)
Ms. Attorney, you have requested that I prepare an analysis of In re BGI, Inc., 772 F.3d
102, 2014 WL 5462477 (2d Cir. 2014). You have asked me to address the following:
the important facts of the case;
the prior law that In re BGI, Inc. changes or clarifies;
how this case changes or clarifies that law;
why this case is important;
cases in other circuits addressing the same issues; and
which circuits are more favorable to creditors and which are more favorable to debtors,
with respect to the issues that In re BGI, Inc. changes or clarifies.
In In re BGI, Inc., former book retailer BGI Inc., f/k/a Borders Group, Inc., and its
affiliates (“Borders” or “Debtors”) filed voluntary petitions in February 2011 for relief through
reorganization under Chapter 11 of the Bankruptcy Code.1
The Bankruptcy Court established
June 1, 2011 as the deadline for prepetition claims to be filed by purported creditors (the “Bar
Date”).2
Borders completed all notice requirements for the Bar Date, pursuant to Rule 2002.3
In July 2011, after Borders failed to reorganize as on ongoing concern, the court permitted
1
11 U.S.C. § 1101, et seq.; Id. at 104.
2
Id.
3
Id. at 105.
3. 2
Borders to liquidate its assets and close its business.4
On September 20, 2011, Borders closed
the last of its retail branches and, one week later, discontinued accepting gift card sales and all
website sales.5
In November 2011, Borders filed its Chapter 11 liquidation plan under section
1125 of the Bankruptcy Code, together with the required Disclosure Statement, pursuant to 11
U.S.C. § 1125(b).6
Borders complied with all notification requirements, including publication of
the confirmation hearing date in The New York Times on November 16, 2011.7
No appellant
filed an objection to the Plan before or during the hearing.8
The court approved the liquidation
plan (the “Plan”) after the December 20, 2011 confirmation hearing and ordered the Plan put
into effect on January 12, 2012 (the “Confirmation Order”).9
Two weeks after the hearing, on January 4, 2012, Appellants Beeman and Freij filed
motions to file untimely proofs of claim, alleging that they never received adequate notice of
the bankruptcy proceedings or Bar Date (“Late Claims Motion”).10
A third Appellant, Traktman,
filed a late claim without authorization.11
All three Appellants filed a motion for class
certification (“Class Certification Motion”).12
The Appellants held unused gift cards issued by
Borders.13
Appellees BGI Creditors' Liquidating Trust (the “Trust”) and the Liquidating Trustee
filed objections to the motions.14
4
Id. at 105.
5
Id.
6
Id.
7
Id.
8
Id.
9
Id.
10
Id. at 106.
11
Id.
12
Id.
13
Id. at 104.
14
Id. at 106.
4. 3
The court denied all motions.15
Pursuant to Rule 2002, the court found that only the
“constructive notice” of the newspaper publication was required for gift card holders because
their identities were unknown to Borders.16
The court concluded that the Appellants would be
entitled to “actual notice” of the Bar Date only if they were “known” debtors of the Chapter 11
debtor.17
Because the Plan had been substantially consummated, the court concluded that
relief, if granted, would have been “disastrous” to the estate and, therefore, inequitable.18
Further, because they had no entitlement to actual notice, the court concluded that their
failure to file timely proofs of claim could not be considered excusable neglect and hence could
not be excused under Bankruptcy Rule 9006(b)(1).19
After denying the Lateness Motion (and
similarly denying Traktman’s motion), the court then denied the Class Certification Motion as
moot.20
The Appellants timely appealed to District Court, which dismissed all three appeals as
equitably moot.21
The Appellants appealed to the Second Circuit.22
The Second Circuit ruled
that equitable mootness applied and affirmed the District Court decisions.23
15
Id.
16
Id.; In re BGI, Inc., 476 B.R. 812, 820-21, 823-24 (Bankr. S.D.N.Y. 2012).
17
In re BGI, Inc., 772 F.3d at 106.
18
Id.
19
Id.
20
Id. at 107.
21
Id. The doctrine of equitable mootness permits a district court, in its discretion, to dismiss a bankruptcy appeal,
that could otherwise be granted, when implementation of the relief would be inequitable because the realities and
interests of the parties in finality outweigh the appellant’s right to review and relief. Id.; In re Charter Commc'ns,
Inc., 691 F.3d 476, 481 (2d Cir.2012). Constitutional (Article III) mootness arises when “an event occurs which
renders it impossible for this court, if it should decide the case in favor of the plaintiff, to grant him any effectual
relief whatever.” Mills v. Green, 159 U.S. 651, 653, 16 S. Ct. 132, 133, 40 L. Ed. 293 (U.S.S.C. 1895) (emphasis
added). The typical invocation of equitable mootness, however, arises after a Chapter 11 plan has been approved
under section 1129 of the Bankruptcy Code, but an objecting creditor exercises its right to appeal the plan. 2010
Ann. Surv. of Bankr.Law 9. Relief in a constitutional sense is still possible, because there remains an actual case or
controversy, but is not granted pursuant to a balancing of equitable, not constitutional, considerations. In re AOV
Indus., Inc., 792 F.2d 1140, 1147 (D.C. Cir. 1986) (concluding that “Even when the moving party is not entitled to
dismissal on article III grounds, common sense or equitable considerations may justify a decision not to decide a
case on the merits”). Equitable mootness is, therefore, to be distinguished from Article III mootness utterly.
However, the fact that a court may choose to declare an active case or controversy moot is troubling to some
5. 4
In the Second Circuit, prior to In re BGI, Inc., the courts had fashioned the doctrine of
equitable mootness for Chapter 11 reorganizations, but not for liquidations.24
The In re BGI,
Inc. ruling advances prior precedent regarding equitable mootness as applied to Chapter 11
liquidations in the Second Circuit, which had not addressed the question, by concluding that the
doctrine “applied to appeals arising from Chapter 11 liquidation proceedings,” not merely
appeals from Chapter 11 reorganization proceedings.”25
The court concluded that there was no
reason to limit its application to reorganizations, so it extended equitable mootness to
liquidations.26
Equitable mootness is a “pragmatic” doctrine, which takes notice of the fact that the
passage of time after a judgment in equity entitles the parties to a sense of finality when
disturbing that finality on appeal is “impractical, imprudent, and therefore inequitable.”27
In
the Second Circuit, a bankruptcy court ruling is presumed equitably moot when the
jurists, so, at minimum, the terminology should be modified. See the analysis of Seventh Circuit Judge
Easterbrook’s comments in Bankruptcy Appeals and Equitable Mootness:
On appeal, Judge Easterbrook found that the “raw ability” to award relief existed, effectively ruling out
mootness under the authority of Mills v. Green. Rather, he focused on the possibility that the case should
be dismissed as equitably *2326 moot. Judge Easterbrook attempted, however, to banish the term
“equitable mootness” from the local lexicon. Instead of determining whether the case was moot, Judge
Easterbrook suggested that it was more accurate to determine “whether it [was] prudent to upset the
plan of reorganization.” Ross E. Elgart, Bankruptcy Appeals and Equitable Mootness, 19 CARDOZO L. REV.
2311, 2325-26 (1998).
22
In re BGI, Inc., 772 F.3d at 107.
23
Id. at 110-11.
24
In In re BGI, Inc., 772 F.3d at 107, the Second Circuit explained that:
It was developed judicially “in response to the particular problems presented by the consummation of
plans of reorganization under Chapter 11,” in which “the need for finality, and the need for third parties
to rely on that finality,” is of paramount importance. (internal citations omitted)
25
Id. at 107.
26
Id. at 108 (holding that “We see no principled reason, in a Chapter 11 liquidation proceeding, for denying a court
discretion to apply the doctrine of equitable mootness and the corresponding Chateaugay analysis.”).
27
Id. at 107; Deutsche Bank AG v. Metromedia Fiber Network, Inc. (In re Metromedia Fiber Network, Inc.), 416
F.3d 136, 144 (2d Cir.2005) (quoting MAC Panel Co. v. Va. Panel Corp., 283 F.3d 622, 625 (4th Cir.2002)).
6. 5
reorganization plan is “substantially consummated.”28
Section 1101(2) of the Bankruptcy Code
defines “substantial consummation” as:
(A) transfer of all or substantially all of the property proposed by the plan to be
transferred; (B) assumption by the debtor or by the successor to the debtor under the
plan of the business or of the management of all or substantially all of the property
dealt with by the plan; and (C) commencement of distribution under the plan. 11 U.S.C.
§ 1101(2).
An objector may overcome a plan’s presumed equitable mootness due to substantial
consummation if all five conditions of FritoLay, Inc. v. LTV Steel Co. (In re Chateaugay Corp.), 10
F.3d 944 (2d Cir.1993) (“Chateaugay II ”) are satisfied.29
Those conditions are:
(a) the court can still order some effective relief, *953 Church of Scientology v. United
States, 506 U.S. 9, 113 S.Ct. 447, 449, 121 L.Ed.2d 313 (1992);
(b) such relief will not affect “the re-emergence of the debtor as a revitalized corporate
entity”, In re AOV Industries, Inc., 792 F.2d at 1149;
(c) such relief will not unravel intricate transactions so as to “knock the props out from
under the authorization for every transaction that has taken place” and “create an
unmanageable, uncontrollable situation for the Bankruptcy Court”, In re Roberts Farms,
Inc., 652 F.2d 793, 797 (9th Cir.1981);
(d) the “parties who would be adversely affected by the modification have notice of the
appeal and an opportunity to participate in the proceedings”, Central States, Southeast
and Southwest Areas Pension Fund v. Central Transport, Inc., 841 F.2d 92, 96 (4th
Cir.1988) (citations omitted); and
(e) the appellant “pursue[d] with diligence all available remedies to obtain a stay of
execution of the objectionable order ... if the failure to do so creates a situation
rendering it inequitable to reverse the orders appealed from”, In re Roberts Farms, Inc.,
652 F.2d at 798. Chateaugay II, 10 F.3d 944, 952-53 (2d Cir. 1993).
These conditions must be evaluated in a context-specific inquiry into the actual effects of any
requested relief on a given bankruptcy.30
The significance of equitable mootness, as applied in Chapter 11 liquidations, is that it
recognizes that the compromises made to execute a liquidation frequently cannot be undone
28
Id. at 108; In re Charter Commc'ns, Inc.,691 F.3d at 482.
29
Id. at 109.
30
In re BGI, Inc., 772 F.3d at 108.
7. 6
and that any attempt to do so invites perilous and unpredictable results.31
More specifically,
the court in In re BGI, Inc. stated:
In such a liquidation, affected parties may have devoted months of time and resources
toward developing an acceptable plan; creditors with urgent needs may have been
stayed from accessing assets and funds to which they are entitled; and extensive judicial
resources may have been consumed. In liquidation as in reorganization, substantial
interests may counsel in favor of preventing tardy disruption of a duly developed,
confirmed, and substantially consummated plan. In re BGI, Inc., 772 F.3d at 108-09.
Equitable mootness, then, attempted to guarantee a kind of common-sense fairness and
predictability to all parties in interest.
While In re BGI, Inc. firmly entrenched the doctrine of equitable mootness for Chapter
11 liquidation plans in the Second Circuit, there is a mixed application in other circuits.32
The
following circuits have explicitly endorsed the doctrine for Chapter 11 liquidations: the Fifth,33
Eighth,34
and Tenth.35
The following Circuits have explicitly endorsed the doctrine for Chapter 7
liquidations, but it would appear likely that the doctrine would be extended to Chapter 11
liquidations36
: the First,37
Fourth,38
and Ninth.39
31
Id. at 108-09.
32
Id. at 109. Note that we initially rely on the findings of In re BGI, Inc. to cite precedent in other circuits.
However, we also independently assess precedent.
33
See Schaefer v. Superior Offshore Int'l, Inc. (In re Superior Offshore Int'l, Inc.), 591 F.3d 350, 353–54 (5th
Cir.2009) (applying equitable mootness analysis to appeal of order confirming a Chapter 11 liquidation plan) cited
with approval in In re BGI, Inc., 772 F.3d at 109 n.10 (2d Cir. 2014).
34
See Zegeer v. President Casinos, Inc. (In re President Casinos, Inc.), 409 Fed.Appx. 31 (8th Cir.2010) (dismissing as
equitably moot appeal related to a Chapter 11 liquidation proceeding) cited with approval in In re BGI, Inc., 772
F.3d at 109 n.10 (2d Cir. 2014).
35
See Sutton v. Weinman (In re Centrix Fin. LLC), 355 Fed.Appx. 199, 201–02 (10th Cir.2009) (remanding appeal to
district court in a Chapter 11 liquidation proceeding to apply equitable mootness analysis) cited with approval in In
re BGI, Inc., 772 F.3d at 109 n.10 (2d Cir. 2014).
36
See In re BGI, Inc., 772 F.3d at 109.
37
See Hicks, Muse & Co. v. Brandt (In re Healthco Int'l, Inc.), 136 F.3d 45, 48–49 (1st Cir.1998) (applying equitable
mootness analysis in a Chapter 7 liquidation proceeding) cited with approval in In re BGI, Inc., 772 F.3d at 109 n.10
(2d Cir. 2014).
38
See Drawbridge Special Opportunities Fund, L.P. v. Shawnee Hills, Inc. (In re Shawnee Hills, Inc.), 125 Fed.Appx.
466, 469–70 (4th Cir.2005) (applying equitable mootness analysis in a Chapter 7 liquidation proceeding) cited with
approval in In re BGI, Inc., 772 F.3d at 109 n.10 (2d Cir. 2014).
8. 7
The extent to which a circuit’s extension of equitable mootness to Chapter 11
liquidation benefits creditors or debtors requires an analysis of the elements identified by each
circuit. In all circuits below, except where previously indicated, we describe the doctrine as
applied to Chapter 11 reorganizations, not liquidations, because the doctrine was merely
extended to liquidations, unaltered, and the case law is extensive only for reorganizations.40
Though my review of dozens of cases suggests that no circuit is resistant to the doctrine or its
extension to liquidation (only the name of the doctrine is particularly controversial), our
attorneys should be prepared to argue for that extension as a natural and trivial adaptation,
when necessary for a debtor.41
The tests for equitable mootness established by each circuit
follow.
The First Circuit requires the court to inquire as to “whether an unwarranted or
repeated failure to request a stay enabled developments to evolve in reliance on the
bankruptcy court order to the degree that their remediation has become impracticable or
impossible.”42
The circuit further requires the court to determine whether the relief is feasible
in light of the impact on the plan.43
39
See Fitzgerald v. Ninn Worx Sr., Inc. (In re Fitzgerald), 428 B.R. 872, 881 (9th Cir.BAP 2010) (applying equitable
mootness analysis in a Chapter 7 liquidation proceeding) cited with approval in In re BGI, Inc., 772 F.3d at 109 n.10
(2d Cir. 2014).
40
The court in In re BGI, Inc., for instance, discounted the notion that the doctrine should change when applied to
liquidations with: “Indeed, to the contrary: several of our sister circuits have applied the doctrine in the liquidation
setting and did so with no more than cursory discussion.” See In re BGI, Inc., 772 F.3d at 109.
41
Due to its ubiquitous support, however, our attorneys are well advised not to argue against it as a viable
doctrine when representing objecting creditors in liquidation matters. The tests established by the circuits present
ample opportunity for defeating the doctrine’s application in a given case.
42
In re Healthco Int'l, Inc., 136 F.3d 45, 48 (1st Cir. 1998).
43
See In re Pub. Serv. Co. of New Hampshire, 963 F.2d 469, 473 (1st Cir. 1992) (“The failure to obtain a stay is not
sufficient ground for a finding of mootness. … in the absence of a stay, . . . the reviewing court must scrutinize each
individual claim, testing the feasibility of granting relief against the potential impact on the reorganization scheme
as a whole. . . . The case is moot if the requested relief would be either inequitable or impracticable in light of the
change in circumstances.”) (quotation marks and citations omitted).
9. 8
The Third Circuit requires that five factors be considered with weights according to the
circumstances of the case; the chief among these factors is whether the plan has been
substantially consummated.44
Specifically, the court stated:
Factors that have been considered by courts in determining whether it would be
equitable or prudential to reach the merits of a bankruptcy appeal include (1) whether
the reorganization plan has been substantially consummated, (2) whether a stay has
been obtained, (3) whether the relief requested would affect the rights of parties not
before the court, (4) whether the relief requested would affect the success of the plan,
and (5) the public policy of affording finality to bankruptcy judgments. See Manges, 29
F.3d at 1039; Rochman, 963 F.2d at 471–72. The Trustees have not taken issue with our
identification of these factors. In re Cont'l Airlines, 91 F.3d 553, 560 (3d Cir. 1996).
The Third Circuit recently reaffirmed this five-factor test and explained the relationships
between the factors in detail.45
The Fourth Circuit requires a four-part balancing test to determine whether equitable
mootness applies:
(1) whether the appellant sought and obtained a stay; (2) whether the reorganization
plan or other equitable relief ordered has been substantially consummated; (3) the
extent to which the relief requested on appeal would affect the success of the
reorganization plan or other equitable relief granted; and (4) the extent to which the
relief requested on appeal would affect the interests of third parties. Mac Panel Co. v.
Virginia Panel Corp., 283 F.3d 622, 625 (4th Cir. 2002).
The Fifth Circuit requires that only three factors be considered to apply equitable
mootness, but permits the court to hear the appeal even if multiple factors are actually met,
especially if the court can fashion effective relief without disturbing the finality of the plan:
44
In re Cont'l Airlines, 91 F.3d 553, 560 (3d Cir. 1996).
45
In re Semcrude, L.P., 728 F.3d 314, 320-21 (3d Cir. 2013) (“These factors, as we explained recently, are
interconnected and overlapping. Phila. Newspapers, 690 F.3d at 168–69. ‘The second factor principally duplicates
the first in the sense that a plan cannot be substantially consummated if the appellant has successfully sought a
stay.’ In analyzing the first factor, courts have asked ‘whether allowing an appeal to go forward will undermine the
plan, and not merely whether the plan has been substantially consummated under the Bankruptcy Code's
definition.’ This collapses the first and fourth factors. . . .”) (most quotation marks and citations omitted).
10. 9
When determining whether a bankruptcy issue is equitably moot, the court considers
“(1) whether a stay was obtained, (2) whether the plan has been ‘substantially
consummated,’ and (3) whether the relief requested would affect either the rights of
parties not before the court or the success of the plan.” In re Manges, 29 F.3d 1034,
1039 (5th Cir.1994). Here, the first and third factors predispose toward equitable
mootness, but the doctrine does not prevent this court from addressing the issues on
appeal. In re Superior Offshore Int'l, Inc., 591 F.3d 350, 353 (5th Cir. 2009).
The Sixth Circuit also adopted these three factors.46
The Seventh Circuit rejects the name “equitable mootness” because mootness, as an
Article III constitutional bar to review, is jurisdictional, and cannot be overcome by equitable
considerations.47
Chief Judge Posner captured the view of the Seventh Circuit on the matter
with:
The now nameless doctrine is perhaps best described as merely an application of the
age-old principle that in formulating equitable relief a court must consider the effects of
the relief on innocent third parties. So if modification of a plan of reorganization would
upset legitimate expectations, it may be refused . . . . Matter of Envirodyne Indus., Inc.,
29 F.3d 301, 304 (7th Cir. 1994) (internal citations omitted).
The discretion of the courts of the Seventh Circuit is, therefore, broad. Specific factors to be
weighed are not explicitly authorized within the circuit.
46
See In re United Producers, Inc., 526 F.3d 942, 947 (6th Cir. 2008) (holding that “The leading Sixth Circuit case on
equitable mootness issues is In re American HomePatient in which we adopted the Fifth Circuit's three-part test for
determining whether an appeal from the confirmation of a bankruptcy plan should be dismissed as equitably
moot. In re American HomePatient, 420 F.3d at 563-64.”).
47
See, for instance, Matter of Envirodyne Indus., Inc., 29 F.3d 301, 304 (7th Cir. 1994), in which the Seventh Circuit
stated that:
A case is moot if there is no possible relief which the court could order that would benefit the party
seeking it. The appeal in this case is not moot in that sense. At least partial relief is possible, and that is
enough to satisfy the requirements of Article III. Id. at ––––, 113 S.Ct. at 450; In re UNR Industries, Inc., 20
F.3d 766, 768 (7th Cir.1994). . . . But even when relief is possible . . . courts will frequently refuse to
modify the plan if it has already been implemented, because of the effects of modification on nonparties
to the dispute. Id. at 769-70, and cases cited there. This principle went by the misleading name of
“equitable mootness,” until the name was anathematized by Judge Easterbrook in the UNR case. Id. at
769.” Matter of Envirodyne Indus., Inc., 29 F.3d 301, 303-04 (7th Cir. 1994) (some citations omitted).
11. 10
In the Eighth Circuit, the standard is not completely clear. One Bankruptcy Appellate
Panel decision, which the Eight Circuit approves, but only in an unpublished opinion, appears to
adopt the standard of the First Circuit.48
Another appears to adopt the Third Circuit’s test.49
The Ninth Circuit has adopted a four-factor, sequentially applied test that places
significant emphasis on its first factor, whether a stay has been obtained or at least sought with
due diligence50
:
We endorse a test similar to those framed by the circuits that have expressed a
standard: [a] We will look first at whether a stay was sought, for absent that a party has
not fully pursued its rights. [b] If a stay was sought and not gained, we then will look to
whether substantial consummation of the plan has occurred. [c] Next, we will look to
the effect a remedy may have on third parties not before the court. [d] Finally, we will
look at whether the bankruptcy court can fashion effective and equitable relief without
completely knocking the props out from under the plan and thereby creating an
uncontrollable situation for the bankruptcy court. In re Thorpe Insulation Co., 677 F.3d
at 881.
The D.C. Circuit follows the standard of the Ninth Circuit.51
48
See In re President Casinos, Inc., 409 F. Appx. at 31-32. In re President Casinos, Inc. explicitly endorses the
Bankruptcy Appellate Panel’s decision In re Williams, 256 B.R. 885, 896 (8th Cir.BAP 2001) (factors considered in
determining equitable mootness). In re President Casinos, Inc., 409 F. Appx. at 32. In re Williams, 256 B.R. 885,
896 (8th Cir.BAP 2001) describes the standard to be applied in the Eighth Circuit as that of the First Circuit
standard:
In essence, the appellate court “inquires whether an unwarranted or repeated failure to request a stay
enabled developments to evolve in reliance on the bankruptcy court order to the degree that their
remediation has become impracticable or impossible.” Hicks, Muse & Co., Inc. v. Brandt (In re Healthco
International Inc.), 136 F.3d 45, 48 (1st Cir.1998). In re Williams, 256 B.R. 885, 896 (B.A.P. 8th Cir. 2001).
49
In re Michels, 286 B.R. 684, 690 (B.A.P. 8th Cir. 2002) (holding “In In re Continental Airlines, 91 F.3d 553 (3d
Cir.1996), the Third Circuit established the doctrine of equitable mootness under which an appellate court may
dismiss an appeal from a bankruptcy court as moot ‘even though effective relief could conceivably be fashioned,
[when] implementation of that relief would be inequitable.’ Id. at 559.”). The In re Michels court then proceeds to
list and follow the factors provided by In re Continental Airlines., deciding that the test argued against equitable
mootness. In re Michels, 286 B.R. at 690-91.
50
See In re Thorpe Insulation Co., 677 F.3d 869, 881 (9th Cir. 2012) (“A failure to seek a stay can render an appeal
equitably moot. In re Roberts Farms, 652 F.2d at 797–98. However, failure to obtain a stay does not require a
conclusion of equitable mootness where parties use due diligence in seeking the stay.”).
51
In re AOV Indus., Inc., 792 F.2d 1140, 1148 (D.C. Cir. 1986) (“Although this circuit has not considered the issue
directly, a line of Ninth Circuit decisions has applied these principles to disputes over the continued viability of
bankruptcy appeals. . . . We think that properly understood, the Ninth Circuit's decisions provide the appropriate
analytic framework for the mootness issue.”).
12. 11
The Tenth Circuit implicitly endorsed the approach of the Third Circuit by following the
Third Circuit’s precedent identified in 1998.52
However, later the court adopted a six-factor
test:
It seems that under the doctrine of equitable mootness a court should decline to hear
an appeal of a bankruptcy court's decision where the answers to the following six
questions indicate that reaching the merits would be unfair or impracticable: (1) Has the
appellant sought and/or obtained a stay pending appeal? (2) Has the appealed plan
been substantially consummated? (3) Will the rights of innocent third parties be
adversely affected by reversal of the confirmed plan? (4) Will the public-policy need for
reliance on the confirmed bankruptcy plan—and the need for creditors generally to be
able to rely on bankruptcy court decisions—be undermined by reversal of the plan? (5)
If appellant's challenge were upheld, what would be the likely impact upon a successful
reorganization of the debtor? And (6) based upon a quick look at the merits of
appellant's challenge to the plan, is appellant's challenge legally meritorious or equitably
compelling? These six factors are not necessarily conclusive, nor will each factor always
merit equal weight. But these six factors seem to reflect the factors often weighed in
other cases where equitable mootness is at issue. In re Paige, 584 F.3d 1327, 1339 (10th
Cir. 2009).
The Eleventh Circuit holds that a nine-part inquiry is necessary to determine equitable
mootness53
:
The mootness inquiry necessarily involves many subsidiary questions: Has a stay
pending appeal been obtained? If not, then why not? Has the plan been substantially
consummated? If so, what kind of transactions have been consummated? What type of
relief does the appellant seek on appeal? What effect would granting relief have on the
interests of third parties not before the court? And, would relief affect the re-
emergence of the debtor as a revitalized entity? The answers to these questions provide
the reviewing court with the backdrop to evaluate the ultimate issue of whether a
52
Specifically, the Tenth Circuit stated:
In Continental Airlines, the court isolated five factors that may be considered when determining if
equitable or prudential mootness is applicable. Continental Airlines, 91 F.3d at 560. These factors, which
may be given “varying weight, depending on the particular circumstances” of any given case, include . . ..
A short examination of the issues raised by Telco on appeal in relation to these five factors reveals the
problems that would be faced if we were to exercise jurisdiction and reverse the Bankruptcy Court's
Confirmation Order or Modification Order. In re Long Shot Drilling, Inc., 224 B.R. 473, 479 (B.A.P. 10th Cir.
1998).
53
In re Lett, 632 F.3d 1216, 1226 n.20 (11th Cir. 2011) (“The Eleventh Circuit in In re Club Associates offered a list
of subsidiary questions a court may consider when looking at the circumstances of the case.”) (internal quotation
marks omitted).
13. 12
confirmation plan has progressed to the point where effective judicial relief is no longer
a viable option. In re Club Associates, 956 F.2d 1065, 1069 n.11 (11th Cir. 1992).
The Federal Circuit appears to be silent on the issue of equitable mootness, although it
is aware of the doctrine.54
In determining which circuit court would be most favorable to a creditor or debtor on
the question of equitable mootness, we initially note the different interests that each seeks to
protect. A debtor generally favors equitable mootness because it is a defense against a creditor
attempting to unravel a confirmed plan. The lower the bar for advancing the doctrine, the
better for the debtor because the debtor’s defense will be easier to mount. The doctrine,
however, works against an objecting creditor because it is a barrier to the creditor’s appeal
being heard. Such a creditor would favor a rigid standard for applying the doctrine. However, a
non-objecting creditor, reasonably satisfied with confirmed plan, would, like the debtor, prefer
that the plan not be disturbed and, therefore, favor a standard that is easy to meet. Hence, the
circuits that would benefit a debtor or satisfied creditors are those with minimal standards to
meet to apply the doctrine successfully. The circuits that would benefit a dissatisfied creditor
are those with more exacting standards for the successful invocation of equitable mootness.
The most difficult standard to apply is likely that of the Second Circuit, which requires
that all five of the elements of its test be met. The other circuits permit the doctrine to be
applied as part of more traditional balancing tests, so will be more or less difficult to apply,
depending on the individual circumstances of the client. In general, however, it might be
54
A Westlaw search on the terms “equitable mootness” and similar terms in the Federal District yielded only one
case, which merely stated that the court need not reach that question. See In re Cambridge Biotech Corp., 186
F.3d 1356, 1360 (Fed. Cir. 1999) (“Cambridge cross-appeals, urging that we dismiss appellants' appeal under the
equitable mootness doctrine. We affirm all of the district court's rulings appealed by appellants and thus do not
reach the issue raised by Cambridge's cross-appeal.”).
14. 13
argued that the more factors to be considered, the higher the bar for the successful application
of equitable mootness. The Third, Tenth, and Eleventh Circuits are found at this end of the
continuum. However, whether the objecting creditor has sought and/or obtained a stay
pending appeal is a consideration common to all circuits because the existence of a stay soon
enough after the plan has been confirmed essentially freezes the effects of the plan and
reduces any harm that equitable relief disturbing the plan could possibly cause. Similarly,
whether the plan has been substantially consummated is explicitly or inferentially common to
all circuits.
Finally, depending on the size and sophistication of the debtor, there could be
significant choice in where the debtor files or where creditors attempt to force an involuntary
bankruptcy upon a debtor.55
After a bankruptcy case has commenced in a given jurisdiction,
the parties can apply for a change of venue, though other parties are likely to object
strenuously.56
Since the Bankruptcy Code has been interpreted as permitting a substantial
degree of forum shopping, your question about which circuits benefit our clients is extremely
important to explore.57
55
The typical small business or individual debtor files where the debtor lives. ELIZABETH WARREN, JAY WESTBROOK, JOEL
M. WESTBROOK, KATHERINE PORTER & JOHN POTTOW, THE LAW OF DEBTORS AND CREDITORS 875 (7th ed. 2014). However, a
debtor may file in the district “in which the domicile, residence, principal place of business … or principal assets” of
the debtor exists. 28 U.S.C. §1408(1). The courts have held that a corporation’s domicile is its state of
incorporation. E.g., In re Ocean Properties of Delaware, Inc., 95 B.R. 304 (Bankr. D. Del. 1988). A company may file
where an affiliate has already filed. 28 U.S.C. §1408(2). Effectively, a large company with affiliates in every state
could file in any district. See WARREN, supra note 55, at 876. Creditors may also file an involuntary petition against
a debtor. 11 U.S.C. §303. That petition is a “case under title 11” and hence is subject to the venue requirements
identified above. 28 U.S.C. §1408.
56
28 U.S.C. §1412. For an application of this statute, see In re Patriot Coal Corp., 482 B.R. 718 (Bankr. S.D.N.Y.
2012).
57
See the discussion in footnotes 55 and 56. However, I must note that, to some extent, the circuit in which we
address an equitable mootness matter in a Chapter 11 liquidation may not always matter significantly. All circuits
have fundamentally similar equitable mootness requirements which attempt to balance the equities of disturbing
a confirmed plan vs. providing finality to the parties in interest.
15. 14
With these considerations in mind, I would advise the firm to select a venue, where
possible, as follows:
1. For a debtor client, we should avoid the Second Circuit, which has a more exacting
standard for the application of equitable mootness. We should also avoid the Third
Circuit and Eleventh Circuits for debtor clients because these circuits have more factors
to be considered and explicitly include public policy considerations, all of which make
equitable mootness a harder proposition to demonstrate;
2. For our creditor clients, then, we should choose the Second, Third or Eleventh Circuits.
In these circuits, we will have a somewhat better chance of defeating equitable
mootness arguments, due to the range and variety of factors that must be analyzed
there;
3. If further choice is required for either debtor or creditor clients, we should favor the
First and Seventh Circuits because they have distilled broader, equitable considerations,
without explicit statements of multiple factors. There is more room to argue in these
circuits, so, absent other, extreme fact-specific considerations, the better lawyers could
very well prevail. This should benefit our clients because we represent them;
4. If possible, our creditor clients might want to avoid the Tenth Circuit because one
explicit factor to be weighed is a “quick look” at the merits of the appellant’s challenge.
There is no reason to accept this additional hurdle if it could be avoided by choosing
another circuit;
16. 15
5. For debtor and creditor clients alike, we should avoid the Eighth and Federal Circuits
because their standards appear to be particularly unevolved and we cannot offer as
much predictability to our clients there as we can in other circuits; and
6. The other circuits, not mentioned above for a given creditor or debtor, seem to offer,
relatively, as many advantages as disadvantages for both creditors and debtors.
The facts surrounding the cases of our debtor and creditor clients will ultimately determine
which circuit we choose, to the extent that choice is available to us. However, the above
guidance presents key considerations that we should weigh once we know the material facts of
our clients’ respective matters.