Pleading Fraudulent Transfers in the Wake of the U.S. Fifth Circuit’s Ruling In Life Partners Holding, Inc. v. Cowley

Introduction Rule 9(b) of the Federal Rule of Civil Procedure imposes a heightened pleading standard in cases where the Plaintiff alleges fraud or mistake. Compared to Rule 8(a), which requires a “short and plain statement of the claim,” Rule 9(b) demands pleading the “circumstances” of fraud “with particularity.” In the Fifth Circuit, when the Rule 9(b) pleading…

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To Arbitrate or Not to Arbitrate, That is the Question: Enforcing Arbitration Clauses in Bankruptcy

The Federal Arbitration Act, 9 U.S.C. §§ 1-307, represents a federal policy in favor of enforcing arbitration clauses. The Supreme Court has held that courts are generally obligated to enforce arbitration clauses absent a countervailing federal statute. Shearson/Am. Express, Inc. v. McMahon, 482 U.S. 220, 226 (1987). However, this policy inevitably comes into conflict with the Bankruptcy Code,…

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Every Rose Has Its Thorn: Involuntary Bankruptcy Petitions

On April 16, 2019 ruling in the U.S. Bankruptcy Court for the Northern District of Texas in the case of In re: Essential Financial Education, Inc. held that an involuntary bankruptcy petition filed under 11 U.S.C. §303 may not dismissed when it serves a legitimate purpose and is not merely an extension of a two-party dispute. The Essential Financial…

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Energy-Related Bankruptcies On The Rise: Protecting Oil & Gas Royalty Interests

With the recent uptick in energy-related bankruptcies expected to continue for the foreseeable future (in one prominent example, industry giant Weatherford has just filed for Chapter 11 protection), oil and gas royalty owners need to be on alert. Because companies in financial distress usually fall behind on royalty payments, royalty owners, usually one of the largest…

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Public Safety Comes First – Duties And Obligations Of Ombudsmen In Healthcare Bankruptcies

Healthcare bankruptcies present unique challenges in addition to financial restructuring. An immediate concern that must be addressed in these cases is the ability of the debtor to provide, and continue to provide, adequate services to existing and future patients. Having been involved in numerous healthcare matters filed under both Chapter 7 and Chapter 11, I know first-hand…

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Bondholders Beware? First Circuit Ruling’s Potential Adverse Impact on Puerto Rico’s Long-Term Restructuring Prospects

Having practiced in Puerto Rico for nearly a decade, including being involved heavily in the ongoing Title III PROMESA proceedings, the recent ruling handed down by the First Circuit could prove to be the most impactful for the Island’s long term restructuring prospects and its access to the Bond markets. The controversial ruling, which pertains to…

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The Bankruptcy Discharge Injunction – How Creditors Can Avoid Getting Caught with Their Hands in the Cookie Jar

Debtors who have filed for bankruptcy and received their Discharge often continue to receive collection letters and phone calls from their creditors. Some creditors even go so far as to sue on these discharged debts or garnish wages and bank accounts.  Such actions may result in severe penalties, sanctions and damages. This article goes over…

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Proceed With Caution! Understanding Ipso Facto Clauses In Bankruptcy

The phrase ipso facto is Latin for “by the fact itself.” Ipso facto clauses are sometimes included in lease and purchase contracts, and they assert that if the lessee or purchaser becomes insolvent, or files for bankruptcy protection, then the contract has been breached. In other words, under such a clause the very act of filing for bankruptcy protection constitutes…

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