Recent Publication:
Barry Klayman and Mark Felger authored an article in the Delaware Business Court Insider discussing a recent decision in the Court of Chancery of Delaware granting a corporation’s motion to modify an earlier advancement order where the corporation subsequently amended its claims against a former officer and director in order to eliminate the grounds for advancement.
Mark is the managing partner of the Wilmington office and co-chair of the firm's Bankruptcy, Insolvency & Restructuring Practice.
Mark has a broad commercial practice, focusing in the areas of Chapter 11 reorganization and general insolvency law for almost 30 years. He has represented all constituencies in corporate restructurings and insolvencies both in and out of Chapter 11, including debtors, unsecured creditors' committees, plan trustees, secured creditors, trade creditors, landlords, equipment lessors, reclamation creditors, insurance companies, and equity security holders, as well as acquirers of troubled businesses.
Mark’s practice includes, in large part: (i) counseling debtors through non-judicial restructurings and Chapter 11 proceedings; (ii) advising unsecured creditors’ committees in Chapter 11 proceedings; and (iii) representing trustees in complex Chapter 7 cases.
Mark is a certified mediator for the U.S. Bankruptcy Court for the District of Delaware and maintains an active mediation practice. He has been appointed to serve as mediator in several hundred proceedings over the past dozen years and has successfully mediated more than 100 matters, including WARN litigation, breach of fiduciary duty actions, avoidance litigation, and claim disputes.
Mark is certified by the American Board of Certification in business bankruptcy and is AV-rated by Martindale-Hubbell. He has been designated as a Super Lawyer in both Delaware and Pennsylvania, and has been listed in Chambers & Partners USA as a leading bankruptcy lawyer in Delaware since 2005. He is also included in The Best Lawyers in America for Bankruptcy and Creditor Debtor Rights/Insolvency and Reorganization Law. Mark is a co-author and editor of Representing the Creditors’ Committee: A Guide for Practitioners, published by the American Bankruptcy Institute. In addition, he is president-elect and a Board member for the Philadelphia/Wilmington Chapter of the Turnaround Management Association; and served as the co-chair of the TMA’s Mid-Atlantic Regional Symposium for 2017 and 2018. Mark is on multiple committees for the American Bankruptcy Institute and recently served as the co-chair of the Unsecured Trade Creditors’ Committee. Mark also serves on the Delaware Local Rules Committee and the Board of the American Board Certification.
Mark graduated from Rochester Institute of Technology, with high honors in 1985, and received his J.D. in 1989 from Boston University.
News
January 01, 2020
Mark Felger has been elected president of the Philadelphia/Wilmington chapter of the Turnaround Management Association (TMA). Mark, who is the office managing partner of the Wilmington office and co-chair of the firm's Bankruptcy, Insolvency & Restructuring Practice, will serve a one-year term as president.
August 28, 2019
Best Lawyers selected 138 Cozen O’Connor lawyers from 21 of the firm’s national offices for inclusion in the 2020 edition of The Best Lawyers in America.
May 21, 2019
Super Lawyers has selected 64 Cozen O'Connor attorneys to the 2019 Pennsylvania Super Lawyers and Rising Stars lists.
April 25, 2019
Chambers USA, the leading annual guide to the top lawyers and law firms in the USA, has ranked 57 Cozen O’Connor lawyers as leaders in their respective fields in the Guide’s 2019 edition.
August 22, 2018
One hundred twenty-six Cozen O’Connor lawyers from 20 of the firm’s national offices have been selected for inclusion in the 2018 edition of The Best Lawyers in America.
August 23, 2017
Lawyers were selected for inclusion in the 2018 edition based on a rigorous peer-review that has been developed and defined for more than 30 years.
July 19, 2017
Mark Felger, in conjunction with Erik Schmidt and Keith Kleinman, received court approval for three sale transactions for Unilife Corp., a company which makes wearable medication devices.
May 26, 2017
Chambers USA recognized 47 Cozen O’Connor lawyers as leaders in their respective fields; 14 attorneys were recognized nationally and 11 were ranked in the top band.
August 15, 2016
Sixty-two Cozen O’Connor lawyers from 13 of the firm’s national offices have been selected for inclusion in the 2017 edition of The Best Lawyers in America.
May 27, 2016
Chambers USA recognized 41 Cozen O’Connor lawyers as leaders in their respective fields; 12 attorneys were recognized nationally and 11 were ranked in the top band.
August 17, 2015
The current edition is based on more than five million detailed evaluations by the top lawyers of the country. This list will be included in dozens of city and regional publications in the United States including The Wall Street Journal, The New York Times, and The Washington Post.
July 06, 2015
Chambers USA recognized 37 Cozen O’Connor lawyers as leaders in their respective fields; 12 attorneys were recognized nationally and 10 were ranked in the top band.
May 30, 2014
Chambers USA recognized 29 Cozen O’Connor lawyers as leaders in their respective fields; six attorneys were recognized nationally and eight were ranked in the top band. Stanley Sher was named a “Senior Statesman” in the “Transportation: Shipping: Regulatory (outside New York)” industry, for the pivotal role Sher plays in the firm’s continued success in the transportation industry.
May 26, 2013
PHILADELPHIA – May 26, 2013 – Chambers USA has recognized 29 Cozen O’Connor lawyers as leaders in their fields; five attorneys were recognized nationally and five were ranked in the top band.
June 11, 2012
Chambers USA has recognized 28 Cozen O’Connor lawyers as leaders in their fields; five attorneys were recognized nationally and three were ranked in the top band.
January 18, 2012
Barry Klayman and Mark Felger were quoted in the Delaware Business Court Insider article entitled ''Delaware Bankruptcy Court Expounds on Meaning and Significance of Stern'' regarding Judge Christopher S. Sontchi's views on the significance of the Supreme Court's decision in Stern v. Marshall.
December 01, 2011
Mark Felger quoted in Turnarounds & Workouts
October 30, 2011
Mark Felger quoted in The News Journal
August 10, 2011
Barry Klayman and Mark Felger featured in Delaware Business Court Insider
June 16, 2011
Chambers USA has recognized 27 Cozen O’Connor lawyers as leaders in their fields.
June 18, 2010
Chambers USA has recognized 18 Cozen O’Connor lawyers as leaders in their fields. The annual rankings are based on client and peer references, as well as information gathered from Chambers’ own independent research. Given both nationally and regionally, the rankings are based on qualities including technical legal ability, professional conduct, and client service.
May 28, 2009
Cozen O’Connor is proud to announce that 52 attorneys from the firm’s Philadelphia and West Conshohocken offices have been named 2009 Pennsylvania Super Lawyers by Law & Politics, and will appear in the June 2009 issues of Philadelphia magazine and Pennsylvania Super Lawyers.
June 26, 2008
Cozen O'Connor and Select Firm Attorneys Recognized by Chambers USA 2008
June 09, 2008
Cozen O’Connor Attorney Designated A 2008 Delaware And Pennsylvania Super Lawyer By Law & Politics
May 29, 2008
Cozen O’Connor is proud to announce that 42 attorneys from the firm’s Philadelphia and West Conshohocken offices have been named 2008 Pennsylvania Super Lawyers by Law & Politics, and will appear in the June 2008 issues of Philadelphia magazine and Pennsylvania Super Lawyers.
Publications
January 15, 2020
Barry Klayman and Mark Felger authored an article in the Delaware Business Court Insider discussing a recent decision in the Court of Chancery of Delaware granting a corporation’s motion to modify an earlier advancement order where the corporation subsequently amended its claims against a former officer and director in order to eliminate the grounds for advancement.
December 11, 2019
Barry Klayman and Mark Felger authored an article in the Delaware Business Court Insider, discussing a recent decision in the Court of Chancery of Delaware concerning the applicability of the attorney-client privilege to emails between a party and his attorneys.
November 06, 2019
Barry Klayman and Mark Felger authored an article in the Delaware Business Court Insider, discussing a recent decision of the Court of Chancery of Delaware holding that the defense of in pari delicto is not limited either to actions in equity or at law, and may be asserted as a defense by the Receiver of an insurance company to a legal claim brought in a statutory liquidation proceeding pending in the Court of Chancery.
October 09, 2019
Barry Klayman and Mark Felger authored an article in the Delaware Business Court Insider, discussing a recent decision of the Court of Chancery of Delaware holding that the Delaware General Corporation Law does not prohibit sophisticated owners of a corporation from including provisions in a merger agreement that bind them to a future sale of the resulting entity and the waiver in advance of their statutory appraisal rights.
September 04, 2019
Barry Klayman and Mark Felger authored an article in the Delaware Business Court Insider discussing a recent decision in the Delaware Superior Court, holding that a liability limitation in an agreement is ambiguous where its application would result in an absurd result.
August 07, 2019
Barry Klayman and Mark Felger discuss a recent decision of the Delaware Bankruptcy Court holding that a liquidating trustee succeeds to the privileges held by the debtor’s former audit committee.
July 03, 2019
Barry Klayman and Mark Felger discuss a recent case from the Delaware Court of Chancery upholding the use by the seller of a business of contractual provisions in a merger agreement to protect pre-merger, privileged communications between the seller and its counsel in negotiating the merger and prevent their use by the buyer in subsequent litigation with the seller.
June 05, 2019
Barry Klayman and Mark Felger discuss a recent case from the Delaware Bankruptcy Court holding that the payments by debtors of discretionary bonuses, not tied to previously enunciated metrics and while the debtors were insolvent, were not per se fraudulent conveyances under the Bankruptcy Code in an article in the Delaware Business Court Insider.
May 08, 2019
Barry Klayman and Mark Felger discuss a recent case from the Delaware Superior Court holding that the Delaware Limited Liability Company Act does not confer jurisdiction on the Court of Chancery over all contracts involving LLCs.
April 03, 2019
Barry Klayman and Mark Felger discuss a recent case from the Delaware Court of Chancery explaining the requirements for serving process on a dissolved limited liability company, in order for the plaintiff creditors to recover funds allegedly owed them by the defunct company.
March 13, 2019
Barry Klayman and Mark Felger authored an article in the Delaware Business Court Insider, discussing a recent case from the Delaware Court of Chancery explaining the contours of the “line of business” test for purposes of the corporate opportunities doctrine.
February 20, 2019
Barry Klayman and Mark Felger authored an article in the Delaware Business Court Insider discussing a recent final report submitted by a Master in Chancery in Delaware, finding that an equitable mortgage was enforceable despite defects in the execution of the mortgage.
January 17, 2019
Barry Klayman and Mark Felger co-authored an article in the Delaware Business Court Insider discussing a recent decision by the Delaware Court of Chancery regarding a mutual general release.
December 19, 2018
Barry Klayman and Mark Felger co-authored an article in the Delaware Business Court Insider discussing a recent decision by the Delaware Court of Chancery refusing to grant a TRO in a business dispute.
November 07, 2018
Barry Klayman and Mark Felger co-authored an article in the Delaware Business Court Insider discussing a pair of decisions from the Delaware Bankruptcy Court that address whether persons providing services to debtors relating to the disposition and monetization of real estate, intellectual property, and other estate assets are “professionals.”
October 10, 2018
Barry Klayman and Mark Felger co-authored an article in the Delaware Business Court Insider discussing a pair of decisions from the Court of Chancery and the Delaware Supreme Court.
September 05, 2018
Barry Klayman and Mark Felger co-authored an article in the Delaware Business Court Insider discussing a recent case from the Delaware Bankruptcy Court holding that an anti-assignment clause in a promissory note was enforceable under Delaware law.
August 06, 2018
Barry Klayman and Mark Felger co-authored an article in the Delaware Business Court Insider, discussing a recent case from the Delaware Court of Chancery holding that materials developed during the pretrial discovery process and not filed with the court are not part of the public record.
June 27, 2018
Barry Klayman, a member of Cozen O’Connor’s Commercial Litigation and Bankruptcy, Insolvency & Restructuring Practice Groups, and Mark Felger, co-chair of the Bankruptcy, Insolvency & Restructuring Practice Group, co-authored an article in the Delaware Business Court Insider discussing a recent case from the District of Delaware holding that a creditors committee automatically dissolved when a Chapter 11 case was converted to Chapter 7.
June 07, 2018
Barry Klayman and Mark Felger co-authored an article in the Delaware Business Court Insider, discussing a recent Delaware Court of Chancery case.
May 09, 2018
Barry Klayman, a member of Cozen O’Connor’s Commercial Litigation and Bankruptcy, Insolvency & Restructuring Practice Groups, and Mark Felger, co-chair of the Bankruptcy, Insolvency & Restructuring Practice Group, co-authored an article in the Delaware Business Court Insider, discuss a recent Delaware Bankruptcy Court case enjoining a creditor from pursuing breach of fiduciary duty claims and other claims against a debtor’s former officers and early round investors in the Court of Chancery based on provisions of the debtor’s Chapter 11 plan of liquidation.
April 04, 2018
Barry Klayman, a member of Cozen O’Connor’s Commercial Litigation and Bankruptcy, Insolvency & Restructuring Practice Groups, and Mark Felger, co-chair of the Bankruptcy, Insolvency & Restructuring Practice Group, co-authored an article in Delaware Business Court Insider on a recent Court of Chancery case dealing with the rights of a putative subrogee in the context of a claim for indemnification of defense costs.
March 07, 2018
Mark Felger, co-chair, and Barry Klayman, a member of Cozen O'Connor's Bankruptcy, Insolvency & Restructuring Practice Group, co-wrote an article in Delaware Business Court Insider about the In re Rent-A-Wreck of America, Case that was dismissed by the district of Delaware.
February 14, 2018
Barry Klayman and Mark Felger, members of Cozen O'Connor's Commercial Litigation and Bankruptcy, Insolvency & Restructuring Practice Groups, discuss a recent Delaware Court of Chancery case, Schroeder v.Buhannic in the Delaware Business Court Insider.
January 17, 2018
Barry Klayman and Mark Felger, members of Cozen O'Connor's Commercial Litigation and Bankruptcy, Insolvency & Restructuring Practice Groups, discuss a recent Delaware bankruptcy case, In re Fresh-G Restaurant Intermediate Holding, in Delaware Business Court Insider.
December 06, 2017
Barry Klayman and Mark Felger, members of Cozen O’Connor’s Bankruptcy, Insolvency & Restructuring Practice Group, discuss case B.E. Capital Management Fund
v. Fund.com in Delaware Business Court Insider.
November 08, 2017
Barry Klayman and Mark Felger, members of Cozen O’Connor’s Bankruptcy, Insolvency & Restructuring Practice Group, discuss the significant decision reached in In re Millennium Lab Holdings II, in Delaware Business Court Insider.
October 11, 2017
Barry Klayman and Mark Felger, members of Cozen O’Connor’s Bankruptcy, Insolvency, & Restructuring Practice Group, discuss, in the Delaware Business Court Insider, a recent case in which the Delaware Court of Chancery refused to preclude a defendant corporation from offering evidence at trial that contradicted or was otherwise inconsistent with the deposition testimony of its Rule 30(b)(6) witness, although the plaintiffs would be able to rely on the earlier 30(b)(6) testimony and use it for impeachment.
September 06, 2017
Barry Klayman and Mark Felger, members of Cozen O’Connor’s Bankruptcy, Insolvency & Restructuring Practice, discuss a recent case in which the Bankruptcy Court for the District of Delaware predicted that the state’s courts would recognize the existence of de facto limited liability companies, just as they recognize de facto corporations, in Delaware Business Court Insider.
August 09, 2017
Barry Klayman and Mark Felger, members of the Cozen O’Connor Bankruptcy, Insolvency & Restructuring Practice Group, discuss in the Delaware Business Court Insider a recent case in which the Bankruptcy Court for the District of Delaware held that goods delivered directly to the debtor's customers within 20 days prior to the bankruptcy petition, even though at the debtor's direction and utilizing the debtor's account with the shipper, will not qualify for administrative priority treatment under section 503(b)(9) of the Bankruptcy Code because the debtor never had physical possession of the goods.
July 05, 2017
Barry Klayman and Mark Felger, members of Cozen O'Connor's Bankruptcy, Insolvency & Restructuring Practice, discuss in the Delaware Business Court Insider a recent case in which a divided Delaware Supreme Court held that a mortgage assignee must be entitled to enforce the underlying obligation that the mortgage secures in order to foreclose.
June 07, 2017
Barry Klayman and Mark Felger discuss a case from the Delaware Superior Court dealing with the issue of an allegedly defamatory article that caused injury to a Delaware corporation hosted on a website outside of Delaware.
May 10, 2017
Mark Felger and Barry Klayman discuss a recent case from the Delaware Bankruptcy Court in The Delaware Business Court Insider.
April 05, 2017
Mark Felger and Barry Klayman discuss a recent case from the Delaware Court of Chancery in The Delaware Business Court Insider.
March 27, 2017
Mark E. Felger and Gregory F. Fischer discuss the U.S. Supreme Court’s recent decision in Czyzewski v. Jevic Holding Corp., that structured dismissals must now either comply with the Bankruptcy Code’s basic priority scheme or have the consent of creditors that the structured dismissal seeks to avoid.
March 08, 2017
Mark Felger and Barry Klayman discuss a case involving the effect of a DIP financing order cap on professional fees after a Chapter 11 plan is confirmed in the Delaware Business Court Insider. .
February 08, 2017
Mark Felger and Barry Klayman discuss a case of first impression from the Court of Chancery in The Delaware Business Court Insider.
January 18, 2017
Mark Felger and Barry Klayman discuss a recent bankruptcy court decision in The Delaware Business Court Insider.
January 12, 2017
Mark E. Felger and Simon E. Fraser discuss a recent opinion from the Ninth Circuit that sets out a clear and seemingly easy to follow test to determine whether a given claim held by a landlord is subject to the cap section 502(b)(6) of the Bankruptcy Code imposes.
December 21, 2016
Mark Felger and Barry Klayman discuss a recent Delaware bankruptcy court decision regarding the federal Stored Communications Act.
November 09, 2016
Mark Felger and Barry Klayman discuss a recent Delaware bankruptcy court decision in The Delaware Business Court Insider.
October 12, 2016
Mark Felger and Barry Klayman discuss a recent Delaware bankruptcy court decision in The Delaware Business Court Insider.
September 07, 2016
Mark Felger and Barry Klayman discuss a decision that limits jurisdiction over post-confirmation, noncore claims by the trustee of a liquidating trust.
August 10, 2016
Mark Felger and Barry Klayman discuss a recent Delaware bankruptcy decision allowing the filing of a class-based proof of claim.
July 06, 2016
Mark Felger and Barry Klayman discuss a recent Delaware bankruptcy decision in their Delaware Business Court Insider article.
June 08, 2016
Mark Felger and Barry Klayman discuss the status of champerty and maintenance actions in Delaware in their DBCI article, “Champerty and Maintenance Redux.”
May 11, 2016
Mark Felger and Barry Klayman discuss a Delaware Supreme Court case addressing the issue of honesty and fair dealing among directors.
May 09, 2016
Mark E. Felger and Simon E. Fraser discuss the U.S. Court of Appeals for the Third Circuit decision that maritime carriers and their customers may contractually extend the carrier’s common law possessory liens on cargo, securing payment of shipping charges, so as to cover not only the particular cargo for which shipping charges are outstanding, but all cargo belonging to the customer in the carrier’s possession.
April 06, 2016
Mark Felger and Barry Klayman discuss the showing of particularized need required to compel the production of metadata in The Delaware Business Court Insider.
March 31, 2016
Mark Felger co-authored and edited a practical guide on how to maximize the value of a debtor's assets as well as every step of the Chapter 11 process.
March 09, 2016
Mark Felger and Barry Klayman discuss two decisions from the U.S. Bankruptcy Court for the District of Delaware in the Delaware Business Court Insider.
February 17, 2016
Mark Felger and Barry Klayman discuss the impact of complex, unsettled issues of foreign law in the dismissal of cases on forum non conveniens grounds.
January 13, 2016
Mark Felger and Barry Klayman, both members of Cozen O’Connor’s Bankruptcy group, discuss mandatory arbitration provisions and a recent Delaware decision.
December 09, 2015
Mark Felger and Barry Klayman, both members of Cozen O’Connor’s Bankruptcy group, discuss a recent case in which a judge came to the conclusion that a knowing violation of the law by a fiduciary is a breach of duty.
November 11, 2015
Barry Klayman and Mark Felger discuss the Court of Chancery's recent decision limiting the scope of DGCL Section 205 to declaring the validity of, but not the invalidity of, a defective corporate act
October 14, 2015
Barry M. Klayman and Mark E. Felger published an article in the Delaware Business Court Insider discussing the finding that the plaintiffs' conduct was "prejudicial to the administration of justice" in the OptimisCorp v. Waite case.
September 09, 2015
Barry M. Klayman and Mark E. Felger published an article in the Delaware Business Court Insider discussing the cases of Andrikopoulos v. Silicon Valley Innovation LLC and Henson v. Sousa. The main dispute between the parties in both cases was whether, in the context of LLC receiverships under Delaware law, advancement claims are administrative expenses or unsecured creditor claims.
August 12, 2015
Barry M. Klayman and Mark E. Felger published an article in the Delaware Business Court Insider discussing the case of Interdigital v. Wistron, which answers the question of whether a forum selection clause in an agreement constitutes a waiver of a party’s right to remove the case to federal court if the other party files suit in a Delaware state court.
July 31, 2015
Mark Felger and Keith Kleinman discuss the Supreme Court’s decision in Wellness Int’l Network, Ltd. v. Sharif, in which it was affirmed that bankruptcy courts have jurisdiction to issue final judgments on Stern claims if the parties consent to the bankruptcy court adjudicating such claims.
July 07, 2015
Barry M. Klayman and Mark E. Felger, members in the firm's Wilmington office, published an article in the Delaware Business Court Insider discussing the case of In re Optim Energy LLC (Walnut Creek Mining v. Cascade Investment LLC) and why the opinion in this case is noteworthy.
June 10, 2015
Barry M. Klayman and Mark E. Felger, members in the firm's Wilmington office, published an article in the Delaware Business Court Insider discussing the case of In re Lululemon Athletica 220 Litigation and whether a corporation can search the personal email accounts of its non-employee directors under Section 220.
June 04, 2015
The U.S. Supreme Court affirms jurisdiction of Bankruptcy Courts to enter final judgment on “Stern Claims” based on consent of parties; 3rd Circuit affirms approval of structured dismissals that violate absolute priority rule.
May 13, 2015
Barry M. Klayman and Mark E. Felger, members in the firm's Wilmington office, published an article in the Delaware Business Court Insider titled ''Automatic Stay Doesn't Apply to Right to Compel Annual Meeting.'' The article discusses the case of In re SS Body Armor I and if a stockholder has the right to compel a debtor to hold an annual meeting for the purpose of electing a new board of directors continues during the pendency of a Chapter 11 proceeding, and that the automatic stay does not apply to the exercise of that right.
April 08, 2015
Barry M. Klayman and Mark E. Felger, members in the firm's Wilmington office, published an article in the Delaware Business Court Insider titled "Non-signatory May Enforce Forum Selection Clause to Defeat Removal." The article discusses the case of Carlyle Investment Management LLC v. Moonmouth, and how the case can be instructive for its application of Delaware law to the question of when a non-signatory to an agreement will be bound by its forum selection clause and whether the forum selection clause can be enforced by another non-signatory.
March 10, 2015
Barry M. Klayman and Mark E. Felger, members in the firm's Wilmington office, published an article in the Delaware Business Court Insider titled "Court Adopts Narrow View of Exception to Borrowing Statute." The article discusses Delaware's borrowing statute and statute of limitations, and specifically the case of Saudi Basic Industries v. Mobil Yanbu Petrochemical, 866 A.2d 1 (Del. 2005).
January 14, 2015
Barry M. Klayman and Mark E. Felger, members in the firm's Wilmington office, published an article in the Delaware Business Court Insider titled ''Proceeds of Insurance Policy Are Property of Estate.'' This article discusses the case of Chartis Specialty Insurance v. Tri-Valley (In re Tri-Valley), Adv. No. 12-51243 (MFW) (Bankr. D. Del. Nov. 25, 2014) and third-party insurance policies in bankruptcy cases.
May 14, 2014
Can a party that retains its own counsel be liable to pay a fee to another party's counsel or to class counsel? The answer, according to the recent Court of Chancery opinion in Smith, Katzenstein & Jenkins v. Fidelity Management & Research, C.A. No. 8066-VCL (Del. Ch. April 16, 2014), is a resounding yes. The court rejected the defendants' "own counsel" defense in an action to recover attorney fees and costs for benefits conferred as a result of the plaintiffs' prosecution and settlement of a class action as contrary to longstanding Delaware precedent dealing with shared causation in the award of fees and expenses when an attorney creates a common fund for, or confers a common benefit upon, a readily ascertainable group.
March 12, 2014
Barry Klayman and Mark Felger, members of Cozen O'Connor's Bankruptcy, Insolvency & Restructuring Department, continue their discussion of the interpretation of survival clauses for contractual representations and warranties under Delaware law with a second article on the subject in The Delaware Business Court Insider. They note the court's surprising view on reps and warranties that the parties expressly agree are to survive indefinitely.
December 18, 2013
Does the Bankruptcy Code allow for triangular setoffs in swap and repurchase agreements after commencement of the debtor's bankruptcy case? In Sass v. Barclays Bank (In re American Home Mortgage Holdings), Adv. Proc. No. 11-51851 (CSS) (Del. Bankr. Nov. 8, 2013), the court held that the Bankruptcy Code does not allow parties to set off non-mutual obligations, regardless of whether the agreements are subject to the safe harbor provisions of 11 U.S.C. §§ 559-661.
November 13, 2013
Is electricity a good for purposes of establishing an administrative priority claim under Section 503(b)(9) of the U.S. Bankruptcy Code? That is the question that U.S. Bankruptcy Judge Christopher Sontchi of the District of Delaware answers in In re NE Opco, Case No. 13-11483 (CSS) (Bankr. D. Del. Nov. 1, 2013). Faced with a split in authority from other jurisdictions and no written opinions on the subject in the U.S. Court of Appeals for the Third Circuit, Sontchi, in a fascinating opinion, holds that electricity is not a good for purposes of Section 503(b)(9).
August 15, 2013
Two recent bankruptcy cases decided on the same day by the same judge dealt with motions to amend the complaints in preference actions. Both cases illustrate the court's application of the relation-back doctrine, with differing results. Along the way, the court addressed the requirements for proper service and equitable tolling of the statute of limitations
July 10, 2013
Barry Klayman and Mark Felger of the Wilmington office authored an article titled, "Single Employer Test Emphasizes De Facto Control Factor," in the most recent edition of The Delaware Business Court Insider. The article discusses two recent decisions from the Delaware district and bankruptcy courts on a parent corporation's liability under the federal WARN Act for a subsidiary's failure to provide advance notice of employee layoffs. To read the full article, click here.
June 12, 2013
Barry Klayman and Mark Felger discuss the recent bankruptcy court decision in The Majestic Star Casino LLC v. Barden Development, specifically the case's expansive view of what constituted property of the debtor's estate.
February 22, 2013
The Delaware Bankruptcy Court recently issued an opinion in the Indianapolis Downs Chapter 11 case that is worth reading in its entirety for its impact on numerous plan confirmation issues. This article will address the court's endorsement of post-petition lock-up agreements and, secondarily, the court's approval of a plan's third-party release provision that provides for the deemed consent of non-voting creditors.
February 13, 2013
In WM Inland Adjacent LLC v. Mervyn's LLC...the U.S. Bankruptcy Court for the District of Delaware faced a question of first impression: whether a claim arising from an indemnification provision in a nonresidential commercial lease with the debtor, which the debtor rejected post-petition, was entitled to administrative priority under §365(d)(3), or was a pre-petition, general unsecured claim under §502(g).
November 21, 2012
How far will the bankruptcy court go in exercising post-confirmation jurisdiction in an adversary action based on a pre-petition state law claim?
October 10, 2012
Chancery Court Blocks Suit to Void Completed Merger as Ultra Vires - Delaware Business Court Insider - In Southeastern Pennsylvania Transportation Authority v. Volgenau, 2012 WL 4038509 (Del. Ch. Aug. 31. 2012.), Vice Chancellor John W. Noble dismissed a direct action challenging a consummated merger transpiration on the grounds that the merger violated the company's certificate of incorporation and was ultra vires, but left standing a claim for breach of fiduciary duty against the directors of the company for approving the transaction in violation of the certificate of incorporation.
September 12, 2012
Bankruptcy Court Holds Mechanic's Liens Trimp DIP Liens - Delaware Business Court Insider - The bankruptcy court is frequently called upon to consider the priority between and among liens held by debtor in possession (DIP) lenders and pre-petition secured lenders and holders of other pre-petition perfected liens. In , Adv. No. 09-51074 (KJC), decided August 30, the court faces such a conflict.
June 29, 2012
Third Circuit Extends Grossman's Test for when a 'Claim' Arises but Declines Discharge of Claims on Due Process Grounds - Bankruptcy, Insolvency & Restructuring Alert - Confirmation of a plan of reorganization generally discharges all pre-confirmation “claims.” However, in some instances, a plaintiff’s claim against a debtor does not manifest itself until after a plan has already been confirmed.
May 09, 2012
Safe Harbor Unavailable for Payments to Collateralize Letter of Credit in Bond Redemption - Delaware Business Court Insider -
April 11, 2012
Bankruptcy Court for the District of Delaware Denies Cramdown of Liquidating Plan Because Approving Classes Were "Artificially Impaired" - Bankruptcy, Insolvency & Restructuring Alert! - When a debtor is unable to obtain acceptance of its chapter 11 plan of reorganization or liquidation by all impaired creditor classes, it may attempt to “cramdown” the plan upon certain rejecting classes.1 One of the requirements in
order to obtain confirmation of a plan through a cramdown is that at least one class of impaired claims must approve the plan, determined without including the votes of insider creditors.
March 28, 2012
Nondebtor Parent's Revocation of S Corporate Election Held To Be Void - Delaware Business Court Insider -
February 08, 2012
Bankruptcy Court Holds Equitable Tolling Doesn't Apply to Look-Back Period - Delaware Business Court Insider -
January 18, 2012
Delaware Bankruptcy Court Expounds on Meaning and Significance of Stern - Delaware Business Court Insider -
November 23, 2011
Bankruptcy Court Asserts Jurisdiction to Determine Debtor's State Tax Liability - Delaware Business Court Insider - At a time when practitioners debate the reach of bankruptcy court jurisdiction, the Delaware court continues to assert its jurisdiction in the face
of new challenges. In In re Indianapolis Downs LLC, the U.S. Bankruptcy Court for the District of Delaware held that it had jurisdiction to decide whether a state taxing authority could continue to collect a state tax on part
of the debtor’s revenue from slot-machine wagering. In doing so, the court turned back
July 13, 2011
Bankruptcy Court Rejects Challenge to Personal Jurisdiction in Preference Case - Delaware Business Court Insider - In a June 22 decision in a case of first impression, the Delaware Bankruptcy Court turned back a due process challenge to the exercise of the court's personal jurisdiction over a preference defendant. In In re DBSI Inc., the trustee sought to avoid and recover pre‐petition transfers made to various insiders and
pre‐petition transfers made on behalf of the insiders to the IRS and other taxing authorities.
June 21, 2011
Bankruptcy Court Rejects Bright- Line Rule for Substantially Contemporaneous Exchange - Delaware Business Court Insider - Bankruptcy Court Judge Kevin Gross, in In re J. Silver Clothing Inc., a 2011 case
out of the District of Delaware, rejected an argument that the 10-day (now 30-
day) period in Bankruptcy Code Section 547(e)(2) provides a bright-line limit as
to whether a transfer is "substantially contemporaneous"
May 20, 2011
Bankruptcy filings dip - Philadelphia Business Journal - Local Chapter 11 business bankruptcy filings fell close to pre-recession numbers in the first quarter after spiking dramatically between late 2008 through the middle of last year. But a second wave of filings could come if interest rates rise without being accompanied by significant economic improvement, analysts and bankruptcy lawyers say. Business Chapter 11 filings in New Jersey and the Eastern District of