Bankruptcy

Expert Analysis

• How In-House Counsel Can Better Manage Litigation Exposure

  

  In anticipation of economic downturn and increased litigation volume, the true struggle for an in-house team is allocating their very limited and valuable attentional resources, but the solution is building systems that focus attention where it can be most effective in delivering better outcomes, say Jaron Luttich and Sean Kennedy at Element Standard.

• Practical E-Discovery Lessons From The Alex Jones Case

  

  The accidental disclosure of mobile phone data during the Alex Jones defamation damages trial underlines the importance of having in place a repeatable e-discovery process that includes specific steps to prevent production of data that may be privileged, sensitive or damaging to the case, say Mike Gaudet and Richard Chung at J.S. Held.

• Why Creditors Should Beware Of SBRA Due Diligence Defense

  

  The Delaware bankruptcy court’s recent holding in the Center City Healthcare Chapter 11 case highlights courts' reluctance to interpret the Small Business Reorganization Act as requiring bankruptcy plaintiffs to undertake any additional due diligence, which means trade creditors should beware of seeking to dismiss a preference claim on those grounds, say Eric Chafetz and Lindsay Sklar at Lowenstein Sandler.

• The Ethical Risks For Lawyers Accepting Payments In Crypto

  

  Ohio recently became the fifth jurisdiction to provide attorneys guidance on accepting cryptocurrency as payment or holding cryptocurrency in escrow, but lawyers should beware the ethics rules such payments may implicate, and consider three practical steps to minimize the risks, say Hilary Gerzhoy and Jared Marx at HWG.

• How Ill. Bankruptcy-Alternative Laws Have Endured

  

  A look at the history of Illinois’ laws concerning assignments for the benefit of creditors — a nonjudicial process that is an alternative to bankruptcy — shows their longevity and continuity, and that case law has adapted to meet new circumstances, says Donald Swanson at Koley Jessen.

• Envisioning Metaverse-Based Litigation In The Real World

  

  Attorneys should entertain the possibility of the metaverse becoming a matter of interest in real-world courts by considering what could cause actions outside the virtual world and digital forensics hurdles to be cleared in demonstrating the offense, identifying the culpable parties and collecting damages, say consultants at Keystone Strategy.

• What Del. Justices' Insolvency Ruling Means For Corps.

  

  The Delaware Supreme Court’s recent decision in Stream TV v. SeeCubic — that there is no common law insolvency exception to a section of the state’s corporation laws — lacks a clear provision, which means corporations should consider how much power to confer to their boards without a shareholder vote, says Deborah Reperowitz at Stradley Ronon.

• Opinion

  ABA Stance On Role Of Nonlawyers Is Too Black And White

  

  The American Bar Association's recent resolution affirming its long-standing opposition to nonlawyers owning law practices or receiving shares of legal fees overstates the ethical, professional and regulatory challenges — and ignores the potential benefits — of allowing nonlawyers greater participation in the legal industry, say Peter Jarvis and Trisha Rich at Holland & Knight.

• 5th Circ. Ruling Highlights Split On Ch. 11 Exculpation

  

  The Fifth Circuit's recent decision in the Highland Capital case — imposing strict limitations on bankruptcy courts' authority to exculpate third parties — underscores a federal appellate court split over bankruptcy courts' powers to exculpate nondebtors and raises questions about protections like gatekeeping that may apply to such parties, say attorneys at Orrick.

• Readying Companies For PFAS Regulation And Liability

  

  Managing the uptick in regulatory oversight of per- and polyfluoroalkyl substances and the potential civil liability for companies will require action now, from performing audits and reviewing insurance coverage to considering the Texas two-step merger method, say attorneys at Haynes and Boone.

• How D&O Insurers Can Limit Bankruptcy Exclusion Risks

  

  Amid challenging economic conditions, directors and officers underwriters can't always rely on insolvency exclusions to protect against insured's bankruptcy claims, but there are ways to limit risk exposure, like by adding creditor exclusions or sublimiting coverage, say Kristine Christ at Crum & Forster, and Scott Schechter and Joshua DiLena at Kaufman Borgeest.

• Harnessing The Power Of Big Data In Litigation

  

  The growth in the volume, scope and utility of available data — with vendors tracking and selling data, and government releasing large data sets — requires consideration of new data analysis approaches and technological tools that can help provide objective insights in litigation matters, answer key liability and damages questions, and support critical discovery efforts, say analysts at Bates White.

• How Law Firm Operations Can Adjust To New COVID Realities

  

  Given that COVID-19 may be here to stay, law firms must once again rethink their office policies and culture to adapt to new trends and the permanent lifestyle changes that many attorneys and employees have made, say Kami Quinn and Adam Farra at Gilbert.

• Golf Project Ch. 11 Ruling Is A Deal Term Negotiation Lesson

  

  A Hawaiian bankruptcy court’s recent Pacific Links golf project ruling reinforces the standard lesson of being extra careful when negotiating deal terms with a financially distressed counterparty, and highlights why asset valuation is always a crucial consideration, say Daniel Lowenthal and Maxwell Weiss at Patterson Belknap.

• Law Of The Case Is More Nuanced Than You May Think

  

  The recent Seventh Circuit decision in Flynn v. FCA highlights how frequent misconceptions about the law of the case doctrine are, and suggests that litigants should take a hard look at the key qualifications — and quirks — of this narrow and discretionary doctrine before relying on it as a silver bullet, says Michael Soyfer at Quinn Emanuel.