Press

People (and institutions) like rules that give them a competitive edge. You need only to look at the recent headlines and the media coverage of “Deflate Gate” to understand this basic concept.
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It may surprise some, but approximately 90 percent of all chapter 11 debtors have less than $10 million in assets or liabilities, less than $10 million in annual revenues, and 50 or fewer employees.
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The general counsel of a financially distressed company calls you. She of course clearly states that her company does not need to file a chapter 11 case, but she is curious to understand how a chapter 11 case might work for her company.
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In the latest installment of our series reviewing the Final Report and Recommendations of the American Bankruptcy Institute Commission to Study the Reform of Chapter 11, we review the Commission’s comments on (i) venue and (ii) core and noncore matters – discussed in sections IX.A and IX.B, respectively. Two topics that – in a notable departure from the majority of the Report – the Commission did not issue any recommendations for reform, but for quite different reasons in each instance.
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It is undeniable that chapter 11 changes people’s lives. It can save an employee’s job, continue a customer relationship for a vendor, and preserve a tenant for a landlord. It also can, however, devastate all of these relationships in what feels like a nanosecond—relationships that many people rely on to support their families or their own business operations.
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In the past two months, four retailers have filed bankruptcy cases. RadioShack is rumored to be preparing a chapter 11 filing, and other retailers certainly appear to be struggling. But if you were counseling any of these retailers, would you recommend a chapter 11 filing?
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Claims trading is a hot topic. The claims trading industry has been growing exponentially in recent years. Indeed, the Report notes that in 2012, amid a slowdown in large corporate chapter 11 cases, distressed investors still bought and sold more than $41 billion in bankruptcy claims.
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Based on my research and my ten-plus years in private practice, chapter 11 is not just a value maximization and distribution scheme. It is much more.
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Bankruptcy law in the U.S. has been revised extensively by Congress roughly every 40 years following adoption of the Bankruptcy Act of 1898. Since the last major overhaul occurred in 1978 with the advent of the Bankruptcy Code, the nonprofit, non-partisan American Bankruptcy Institute thought it time to form a commission to study how bankruptcy law should be improved.
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When small and middle-market companies fail, families and founders often lose a business to which they have devoted not only most of their time but also most of their life savings. Others lose as well: employees, suppliers, communities and lenders. Consequently, a federal bankruptcy system that effectively and efficiently rehabilitates distressed small and middle-market companies is essential.
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