David G. Litvack

Being one of the first defendants to settle claims has its pros and cons. On the one hand, defendants may avoid protracted litigation. On the other hand, future defendants may ultimately negotiate lower settlement amounts. To avoid “leaving money on the table,” defendants who settle early may seek to include an equal treatment provision, or […]

Under section 365(d)(4) of the Bankruptcy Code, an unexpired lease of nonresidential real property is automatically deemed rejected if a debtor-lessee does not assume such lease within 120 days of its bankruptcy filing, or within 210 days with court permission. Although this provision seems straightforward enough, Weil’s Bankruptcy Blog has analyzed many instances where interpretation of […]

In a recent, must-read decision, the United States Bankruptcy Court for the Southern District of Florida ruled that a claimant could not obtain specific performance or money damages under a rejected contract because the contract limited the remedies for breach to specific performance, and specific performance is generally unavailable to a non-debtor counterparty to a […]

Many creditors choose not to file a proof of claim if their claim is listed on a debtor’s schedules as undisputed, non-contingent, and liquidated.  Notably, Bankruptcy Rule 3003(b)(1) and section 1111(a) of the Bankruptcy Code specifically provide that a scheduled creditor can have an allowed claim without filing a proof of claim.  Notwithstanding the foregoing, […]

In a case of first impression, Judge Gropper of the United States Bankruptcy Court for the Southern District of New York recently held that a debtor in possession that has timely assumed a real property lease can, after the expiration of the lease assumption or rejection deadline under section 365(d)(4) of the Bankruptcy Code, subsequently […]

For many debtors, section 365(a) of the Bankruptcy Code is a valuable tool that enables the shedding of over-market leases and unprofitable locations.  Section 365(a), however, is silent as to whether a bankruptcy court has the authority to approve a lease rejection retroactively.  If the rejection is effective prior to the date of entry of the order […]

Much ink has been spilled over the enforceability of third party releases in chapter 11 plans, including at the BFR Blog here and here.  A recent decision in the United States Bankruptcy Court for the District of Delaware shifts the burden back to impaired creditors to affirmatively opt out of “consensual” releases unless they want […]