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Will Innovative Moves Reverse the ‘Death Spiral’ of Malls?

Eric S. Chafetz of Lowenstein Sandler discusses the AÉropostale bankruptcy, writing that the innovative move used in that case may be just what the retail space needs to remain relevant and reverse the “death spiral” of malls.

Why Marijuana Companies Can’t File Bankruptcy and How That Could Change

Eloy A. Peral of Wilk Auslander writes: Despite its growth in recent years, the marijuana industry faces a host of challenges stemming from the reality that using or profiting from marijuana in any fashion, even if it is legal under state law, remains a federal crime under the Controlled Substances Act of 1970. The article examines one of these challenges: the ability to take advantage of the Bankruptcy Code.

Uncertainty Continues Over Debtor’s Right to Abandon Property

Lorenzo Marinuzzi of Morrison & Foerster writes: What happens, according to §554, after a trustee or Chapter 11 debtor in possession abandons property is unclear. Practitioners are left with an undeveloped body of case authority that fails to answer the obvious question: now what?

Post-Confirmation Jurisdictional Shrinkage

John H. Drucker, Mark Tsukerman and Myles R. MacDonald of Cole Schotz discuss the factors that courts take into consideration in determining the extent of the post-confirmation jurisdictional shrinkage.

Challenging Midstream Contracts in the Wake of ‘Sabine’

Kathryn A. Coleman and Anson B. Frelinghuysen of Hughes Hubbard & Reed write: ‘Sabine’ set the stage for several heated battles over a debtor’s ability to reject midstream contracts, and, in the process, introduced concern regarding midstream companies’ cash flows. These conflicts arise at the intersection of the core bankruptcy tool of contract rejection, centuries-old state property law, and how the financing that supported the recent expansion of domestic oil and gas production was structured. The authors discuss the details of these conflicts and how the parties have achieved either resolution or the ability to move on despite the continuing lack of definitive answers in every case.

NDAs With Compelled Disclosure Are Critical to Reaching a Deal

Stephen D. Zide and Joseph A. Shifer of Kramer Levin Naftalis & Frankel write: The cleansing NDA has become an indispensable tool in the context of restructuring negotiations. It bridges the competing interests of the parties by providing the debtor with protection for its confidential information and security holders with the assurance that they will not be restricted from trading indefinitely. The debtor and its creditors will then be best situated to negotiate a consensual restructuring.

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