(The Capitol from the Supreme Court on 12/30/16 via Dave’s iPhone)
Once again from my in-laws’ home in Potomac, Maryland, here’s Plan Proponent’s Best of 2016 post. With our second year in the bag, we’ll dispense with the formalities and get straight to the Top 10, link by link. In honor of our Supreme Court posts taking-up at least half of our Top 10 most popular posts of 2016, I’m also including pictures from my sleepy, peaceful trip to the Court on Friday right before it closed for 2016. Happy New Year from Stone & Baxter!
Our Top 10 Posts of 2016 (the titles are clickable)
In this post, my colleague Tom discusses In re Lombard Flats, LLC, a Northern District of California case from March 23, 2016. In that decision, the district court held that an alter ego claim against a Chapter 11 debtor that is based on pre-petition facts and claims is included in the bankruptcy discharge by operation of § 1141(d) and § 524(a). As an aside, and perhaps driving the hits, there’s also a fun link between this case and MTV’s “The Real World: San Francisco” (i.e., the Pedro and Puck season).
We continued our 2 years of Baker Botts coverage with this post. Specifically, in the Samson Resources Corporation Chapter 11 bankruptcy case, Delaware’s Judge Sontchi adopted Judge Walrath’s Baker Botts opinion in Delaware’s Boomerang Tube Chapter 11 case regarding fee-defense costs after Baker Botts. See #6, below. As a recap, the Supreme Court held in Baker Botts that professionals employed under § 327(a) may not be reimbursed for fees that they incur in defending their bankruptcy fee applications.
In this post, we plugged an article that I co-wrote with Richard Gaudet of HDH Advisors, LLC for the American Bankruptcy Institute Journal titled “Zero Times Something is Still Zero: Adapting Till to Unsecured Creditors.” In the article, we discussed how courts might apply Till v. SCS Credit Corp, 541 U.S. 465 (2004) to unsecured creditors. The ABI published the article in its January 2016 edition.
I really enjoyed writing this sort of bankruptcy-related recap of the 2016 11th Circuit Judicial Conference, held this year in May in Point Clear, Alabama. The highlight: Eating dinner with one of President Obama’s top choices to replace Justice Scalia on the Supreme Court, but only realizing those degrees of separation after dinner the next morning!
More Baker Botts coverage, this time via the In re Boomerang Tube, LLC opinion. In Boomerang Tube, Judge Walrath held that neither § 328(a) of the Bankruptcy Code nor a retention agreement provides a sufficient workaround to the fee-defense prohibitions imposed by the Supreme Court in Baker Botts. See also #9, above.
In 2 ambitious parts, we blogged about the Supreme Court’s May 2016 7-1 decision in Husky International Electronics Inc. v. Daniel Lee Ritz. The stated issue before the Court: Does the term “actual fraud” in 11 U.S.C. § 523(a)(2)(A) require a misrepresentation? The Court answered “No.” Justice Thomas disagreed. We covered Part A and Part B of the opinion in Part 1 and Part 2 of the post. I forgot how hairy and complex Husky turned out to be. Tom and I were hitting the blog hard in May! In the Fourth Quarter? Not so much. But, that’s what New Year’s resolutions are for, right?
In this post, we discussed Judge Laura Grandy’s confirmation opinion in STC, Inc.’s Chapter 11 case. The opinion is noteworthy for 2 reasons. First, it’s an excellent treatise on the Section 1129 confirmation requirements. Second, Judge Grandy cited in her opinion my and Richard’s ABI article (see #8).
This post provided a lighthearted excuse to talk about President Obama’s nomination of Merrick Garland, Chief Judge of the U.S. Court of Appeals for the D.C. Circuit, to fill Justice Scalia’s vacant seat on the U.S. Supreme Court (after our dinner companion in #7 bowed out). However, almost a year later, this post isn’t aging very well. What a difference an election makes!
To supplement our “APR Case Chart,” Tom blogged about the Zachary v. California Bank & Trust decision. In that case, the Ninth Circuit overturned the Ninth Circuit Bankruptcy Appellate Panel’s prior holding on the absolute priority rule in In re Friedman, 466 B.R. 471 (B.A.P. 9th Cir. 2012). Agreeing with the Fourth, Fifth, Sixth, and Tenth Circuits, the Ninth Circuit held that the absolute priority rule continues to apply in individual Chapter 11 reorganizations, even after the 2005 BAPCPA amendments to the Bankruptcy Code. Oh well…says these debtor lawyers.
And 2016’s winner is…
We’re really proud of this post. It required an incredible amount of work, but it was well worth it. We even had a bankruptcy judge ask us in open court to help his clerk get the article to print correctly! [We really need an IT guy whose name isn’t Dave.] We have our fingers crossed for President
Obama’s Trump’s Scalia replacement.
Bonus Post (that my non-lawyer friends actually read): The Chicago Cubs in October: Bankruptcy Edition (easily our top post in the 4th quarter!)
And that’s it for 2016. Thanks for following! We hope you enjoyed our posts.
And now, a gallery of Supreme Court pictures from Friday’s visit. (I must say, I was somewhat surprised to see a massive Christmas tree in the Great Hall):