In a decision from August 17, 2007, just released for publication, the Ninth Circuit’s Bankruptcy Appellate Panel (BAP) faced a previously unanswered question under Section 503(b)(9) of the Bankruptcy Code, the section enacted as part of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (known as BAPCPA). Is a Section 503(b)(9) administrative claim
administrative claim
Delaware Bankruptcy Court Considers Whether Key Employee Incentive Plan Milestones Can Be Lowered Without Triggering The Restrictions On Retention Plans
One of the significant changes made by the Bankruptcy Code amendments that took effect in October 2005 was the imposition of severe restrictions on "key employee retention plans," known in the bankruptcy world as KERPs. In this post I’ll discuss how several courts have handled these issues in the year and a half since the…
In Important New Ruling, New York Bankruptcy Court Applies Prior Lien Defense To Post-BAPCPA Reclamation Claims
On Thursday, April 19, 2007, in perhaps only the second decision on reclamation since the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) took effect in October 2005, Judge Burton R. Lifland of the U.S. Bankruptcy Court for the Southern District of New York issued this Memorandum Decision in the In re Dana Corporation Chapter…
The New Section 503(b)(9) Administrative Claim: The Latest On What Courts And Debtors Have Been Doing
A couple of months ago I posted on the new "20 day goods" administrative claim enacted as part of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA"). BAPCPA, which took effect in October 2005, added Section 503(b)(9) to the Bankruptcy Code giving vendors an administrative priority claim for "the value of any…
Delaware Bankruptcy Court Denies Reclamation Claimant’s TRO Request To Stop Sale Of Goods
In a recent post, I discussed how Section 546(c) of the Bankruptcy Code, as revised by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA"), gives vendors the ability to assert a reclamation claim for goods received by a debtor in the 45 days prior to the bankruptcy filing. In addition to extending…
New Bankruptcy Resource: The Absolute Priority Newsletter
As a member of the Bankruptcy & Restructuring Group at Cooley Godward Kronish LLP, I wanted to let you know that we have just launched a new quarterly newsletter called Absolute Priority. The newsletter give updates on current developments in bankruptcies and workouts with the goal of keeping you "ahead of the curve" on these…
20 Day Goods: New Administrative Claim For Goods Sold Just Before Bankruptcy
In a recent post about a vendor’s reclamation rights, I discussed how the 2005 amendments to the bankruptcy laws, known as the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (called "BAPCPA"), extended a vendor’s right to reclaim goods once a bankruptcy petition has been filed. This post focuses on another of BAPCPA’s important changes affecting vendors…
Reclamation: Can A Vendor “Get The Goods” From An Insolvent Customer?
Although vendors sell goods to get paid, it doesn’t always work out that way. If the customer is insolvent or files bankruptcy, the vendor may be stuck with an unpaid account. To make matters worse, some customers (especially those with limited prospects for financing) may even "load up" on inventory and then file bankruptcy without paying. Regardless…