Law Commons^™

Deeping Insolvency: A Cause Of Action, A Tool Of Measuring Damages, Or Nothing At All?, Nicholas Santoro

Bankruptcy Research Library

(Excerpt)

“Deepening Insolvency” is a rather new theory of either liability or damages in cases brought by a plaintiff (typically a bankruptcy trustee, litigation trust, or some other party “filling in” for an insolvent corporation, or debtor) against directors, officers, attorneys, or other professionals, based on their dealings with the debtor. “Deepening insolvency” has been defined as “injury to the debtors' corporate property from the fraudulent expansion of corporate debt and prolongation of corporate life.” The theory of deepening insolvency has become a highly debated by attorneys, creditors, and the courts.

The courts, both state and federal, have continued to …

Giant Eagle, Inc. V. Phar-Mor, Inc., Courtney Pasquariello

Bankruptcy Research Library

(Excerpt)

Although under Pennsylvania common law a lessor has a duty to mitigate damages and is unable to claim damages that could have been avoided, no legal proposition exists that an injured lessor who attempts mitigation of damages resulting from a lessee’s misconduct must bear the consequences of a failed effort. Although the lessor received partial mitigation of a claim against a liable lessee, the lessee nonetheless remains liable for his previous breach.

The Story Of Ymps (“Yield Maintenance Premiums”) In Bankruptcy, Michael G. Hillinger, Ingrid Michelsen Hillinger

Faculty Publications

This article tries to tell the story of YMPs in bankruptcy. It is not an easy story to tell. It has so many subplots: the court’s position on freedom of contract, the debtor’s solvency or insolvency, the effect of recognizing the YMP on other creditors, whether the YMP claim arose pre- or post-petition, the proper relationship between section 502 claim allowance and section 506(b) which permits oversecured claims to include reasonable fees, costs, or charges as provided for in the loan agreement, and the effect of YMP enforcement on chapter 11 plan configuration.

In terms of basic plot line though, …

Section 365 In The Consumer Context: Something Old, Something New, Something Borrowed, Something Blue, Michael G. Hillinger, Ingrid Michelsen Hillinger

Faculty Publications

The § 365 consumer debtor case law has a further complication. Much of it arises in the context of the last great bankruptcy frontier, Chapter 13. Until recently, Chapter 11 has occupied the minds and hearts of courts and attorneys. Not any more. And, as attorneys and courts take a closer, harder look at Chapter 13, it is no longer possible to describe it as a “streamlined creditors-can’t-vote Chapter 11”. Chapter 13 is unique, presenting its very own quandaries, not the least of which is how its provisions and § 365 interact. We live in interesting times.

Corporate Judgement Proofing: A Response To Lynn Lopucki's 'The Death Of Liability', James J. White

Articles

In "The Death of Liability" Professor Lynn M. LoPucki argues that American businesses are rendering themselves judgment proof.- Using the metaphor of a poker game, Professor LoPucki claims American businesses are increasingly able to participate in the poker game without putting "chips in the pot." He argues that it has become easier for American companies to play the game without having chips in the pot because of the ease with which a modern debtor can grant secured credit, because of the growth of the peculiar form of sale known as asset securitization, because foreign havens for secreting assets are now …