Category Archives: Bankruptcy

Special guest Chris Dougherty joins Chris and Melanie to discuss his recent War on the Rocks article, Gradually and then Suddenly: Explaining the Navys Strategic Bankruptcy. Dougherty notes that a series of decisions (and indecisions) decades in the making have backed the Navy into a budget and force-planning corner, and he describes the competing interests that drive different (and rarely complementary) force requirements. What decisions are most needed in order to get the Navy back on the right track? And what practical steps can be taken now to close the gap between the many demands on the Navy and the Navys capacity to meet those demands? Chris Preble is mad at people who spread malicious misinformation, Melanie laments the decline of human civilization as reflected in the Associated Press wrong-headed decision about the plural possessive, and Chris Dougherty gripes about people who gripe about the 2018 National Defense Strategy (but dont know what theyre talking about). Shoutouts for the Cuban people, Jeff Bezos, Richard Branson, Wally Funk, and Gen. David Berger, commandant of the Marine Corps.

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Image: U.S. Navy (Photo by Mass Communication Spc. 3rd Class Daniel Serianni)

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Solving the Navy's Strategic Bankruptcy - War on the Rocks

A bottle of Johnson and Johnson Baby Powder is seen in a photo illustration taken in New York, February 24, 2016. REUTERS/Mike Segar/Illustration/File Photo/File Photo

July 18 (Reuters) - Johnson & Johnson (JNJ.N) is exploring a plan to offload liabilities from widespread Baby Powder litigation into a newly created business that would then seek bankruptcy protection, according to seven people familiar with the matter.

During settlement discussions, one of the healthcare conglomerates attorneys has told plaintiffs lawyers that J&J could pursue the bankruptcy plan, which could result in lower payouts for cases that do not settle beforehand, some of the people said. Plaintiffs lawyers would initially be unable to stop J&J from taking such a step, though could pursue legal avenues to challenge it later.

J&J has not yet decided whether to pursue the bankruptcy plan and could ultimately abandon the idea, some of the people said. Reuters could not determine whether J&J has retained restructuring lawyers to help the company explore the bankruptcy plan.

J&J faces legal actions from tens of thousands of plaintiffs alleging its Baby Powder and other talc products contained asbestos and caused cancer. The plaintiffs include women suffering from ovarian cancer and others battling mesothelioma.

Johnson & Johnson Consumer Inc. has not decided on any particular course of action in this litigation other than to continue to defend the safety of talc and litigate these cases in the tort system, as the pending trials demonstrate, the J&J subsidiary housing the companys talc products said in a statement provided to Reuters. J&J declined further comment.

Should J&J proceed, plaintiffs who have not settled could find themselves in protracted bankruptcy proceedings with a likely much smaller company. Future payouts to plaintiffs would be dependent on how J&J decides to fund the entity housing its talc liabilities.

J&J is now considering using Texas's divisive merger law, which allows a company to split into at least two entities. For J&J, that could create a new entity housing talc liabilities that would then file for bankruptcy to halt litigation, some of the people said.

The maneuver is known among legal experts as a Texas two-step bankruptcy, a strategy other companies facing asbestos litigation have used in recent years.

J&J could also explore using another mechanism to effectuate the bankruptcy filing besides the Texas law, some of the people said.

A 2018 Reuters investigation found J&J knew for decades that asbestos, a known carcinogen, lurked in its Baby Powder and other cosmetic talc products. The company stopped selling Baby Powder in the U.S. and Canada in May 2020, in part due to what it called misinformation and unfounded allegations about the talc-based product. J&J maintains its consumer talc products are safe and confirmed through thousands of tests to be asbestos-free.

The blue-chip company, which boasts a roughly $443 billion market value, faces legal actions from more than 30,000 plaintiffs alleging its talc products were unsafe. In June, the U.S. Supreme Court declined to hear J&Js appeal of a Missouri court ruling that resulted in $2 billion of damages awarded to women alleging the companys talc caused their ovarian cancer.

Plaintiffs lawyers view the two-step bankruptcy strategy as one that skirts potentially expensive settlements or judgments. Companies view it as a way to corral numerous lawsuits in one court for efficient negotiations that bankruptcy law dictates for asbestos liabilities. The company outside bankruptcy can reach a funding agreement with the entity navigating a court restructuring to cover future settlement payments.

In 2017, Brawny paper towels manufacturer Georgia-Pacific used the Texas law to move asbestos liabilities to an entity that later filed for bankruptcy in North Carolina.

Bankruptcy cases filed to resolve litigation, including those related to asbestos, often take years, and almost never fully repay creditors. OxyContin maker Purdue Pharma LP, for instance, is near resolving thousands of opioid lawsuits after two years of bankruptcy negotiations with a plan valued at more than $10 billion to address trillions of dollars in claims.

Another company, DBMP LLC, filed for bankruptcy last year to resolve asbestos liabilities and said the case could take up to eight years, according to a company press release.

J&J also faces litigation alleging it contributed to the U.S. opioid epidemic and recently recalled certain spray sunscreen products after discovering some of them contained low levels of benzene, another carcinogen.

The company in June agreed to pay $263 million to resolve opioid claims in New York. It has denied wrongdoing related to its opioids.

Additional reporting by Nate Raymond; editing by Vanessa O'Connell and Edward Tobin

Our Standards: The Thomson Reuters Trust Principles.

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EXCLUSIVE J&J exploring putting talc liabilities into bankruptcy-sources - Reuters

Fyre Festival attendees have been dealt a definitive blow to their prospects of recovering a material portion of their promised settlement.

In May a class action settlement ruling by the US bankruptcy court of New York was approved, effectively paving the way for the plaintiffsconsisting of 277 attendeesto receive up to $7,220 per person for a total settlement of over $2 million.

However, that initial figure has changed drastically due to the fact that the Bankruptcy Trustee,Gregory Messer, was able to recover only $1.4 million in assets from the failed festival company. To make matters worse, $1.1 million of that sum went back towards paying court and legal fees, leaving just $300,000 to service the festival's creditors, which includes ticket-holders.

Messer's job wasn't an easy one. Navigating disgraced Fyre CEO Billy McFarland's flawed and overall limited financial records proved difficult in identifying who actually benefitted from the venture, as the New York Post notes. McFarland is currently serving six years in prison for fraud.

Fyre CEO Billy McFarland (L) and Ja Rule.

Web Summit

In a statement to EDM.com, Paul Young, an attorney and legal expert atYoung, Marr & Associates, explained the nuances of Chapter 7 bankruptcy that were ultimately counteractive to the plaintiffs' cause.

"Typically, someone will file a Chapter 7 bankruptcy to discharge or eliminate their debts. If there are assets available, a court-appointed trustee will sell the property and disburse the proceeds among the creditors," Young told EDM.com. "Because there are never enough proceeds to pay every creditor, each will only receive a percentage based on what is available and what they were owed."

In this case, the pro rata style distribution system Young describes means ticket holders will receive a mere $288 eachjust 4% of what the court had awarded them in April. In a blog post penned by Young, he notes that ticket-holders paid anything from$1,200 to upwards of $100K per person in order to attend.

"This is only a fraction of what they are owed by Billy McFarland, Fyre Media, and Fyre Festival, LLC," Young continued.

Unfortunately, these circumstances mean that the path to justice for ticket-holders has come to an unceremonious end in what has become one of music's most infamous events in modern history.

Read the rest here:

Fyre Festival Bankruptcy Case Leaves Attendees With Just 4% of What They're Owed - EDM.com

U.S. Bankruptcy Court Judge Alan Koschik on Tuesday gave Akron-based Energy Harbor athree-month delay in filing documents that detail how four hired guns intervened in Ohio Statehouse politics and House Bill 6.

More: No answers yet from Energy Harbor attorneys, another delay requested

Last year, Koschik told four men at Akin Gump StraussHauer & Feld to give him answers about their involvement in legislative races and getting the energy bill passed. Energy Harbor hired Akin Gump, an international law firm, to help with its bankruptcy and lobbying efforts.In January, Koschik agreed to a six-month delay to getting answers.

More: Selling out in the Statehouse

Energy Harbor attorney Jonathan Streeter on Tuesday told Koschik that themen completedthe "declarations" but making those statements public while Energy Harbor cooperates with federal prosecutors would be detrimental. Energy Harbor needs more time to cooperate with federal prosecutors in secret, he argued.

Energy Harbor, formerly known as FirstEnergy Solutions and owner of two nuclear power plants in northern Ohio, filed for Chapter 11 bankruptcy in March 2018 and emerged in February 2020. During that time, state lawmakers passed a $1.3 billion bailout bill that would provide a subsidy to keep the nuclear plants operating as well as other perks to utilities.

Now that bailout bill is the subject of a criminal racketeering case. Two men charged in the case former Ohio House speaker Larry Householder and former Ohio GOP chairman Matt Borges have pleaded not guilty. Two others lobbyist Juan Cespedes and political strategist Jeff Longstreth signed guilty pleas in October. A fifth man, lobbyist Neil Clark, died by suicide in March.

More: Ohio superlobbyist Neil Clark's tell-all book has Statehouse insiders abuzz

Energy Harbor and its former parent, FirstEnergy Corp., have said publicly that they are cooperating with prosecutors and FirstEnergy disclosed that it is in talks to get a deferred prosecution agreement.

Koschik said he wants to "stay in his lane" and avoid interfering in the U.S. District Court criminal case. He set Oct. 12 as the new deadline for the Akin Gump officials to submit the declarations.

Laura Bischoff is a reporter for the USA TODAY Network Ohio Bureau, which serves the Columbus Dispatch, Cincinnati Enquirer, Akron Beacon Journal and 18 other affiliated news organizations across Ohio.

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Judge grants another delay in getting answers in House Bill 6 case - The Columbus Dispatch

My husband has a large family, and his siblings have varying levels of financial security. One of his sisters is married with teenage children, and though her husband had a low-six-figure job, they have had difficulty keeping up with bills over the years.

Members of the family have given them a substantial amount of money and/or paid for their childrens school or other expenses. Then her husband who is in his 60s and not in the best of health lost his job, and things got worse.

They had absolutely nothing saved and were already behind on their bills. They filed for Chapter 7 bankruptcy and were able to keep their family home. She is now employed and her husband is employed again, albeit at a lower salary than before their bankruptcy.

They received about $20,000 from an inheritance that should have helped them catch up, but they still have trouble making ends meet at times. I am happy that we and other members of the family were able to help them out when they were in need, and I dont have any expectation that we will ever be paid back.

She and her family dont appear to make any real sacrifices or change their spending habits.

The problem I have is she and her family dont appear to make any real sacrifices or change their spending habits, and although I dont want them to be out on the street I dont want us or other family members to have to keep giving them money.

If they dont change their habits and have no savings or plan for retirement, then I have no doubt that at some point it will fall back on us to support them again. My husband and other family members have tried to talk to them about their finances, but they dont seem to listen or just dont get it.

At this point, they would say they are fine but thats until something happens, such as an unexpected large expense, one of them losing their job or getting injured or, even worse, one of them passing away.

What can we do?

Sister-in-Law

Dear Sister-in-Law,

Three little words: No. More. Bailouts.

You and your husband can make a joint decision not to agree to more financial assistance. If they know its there waiting for them, they will be more tempted to spend, spend, spend. If they know youre serious and you have made a stance on this as a family, they will be on notice.

You could as a family and as a parting gesture offer to pay for a series of sessions with a financial adviser or financial therapist. If they are not saving money for their retirement and/or for a rainy day, how are they going to make ends meet? Relationships are not ATMs.

Some people spend their way into a lifestyle to which they would like to become accustomed, but the truth is they dont have the money to become accustomed to it for very long. No amount of lecturing will fill that God-shaped hole. If they dont feel enough with what they have, buying more stuff will only feed that habit.

A financial adviser might ask them to cut up their credit cards, and only buy what they can afford on a monthly budget. Its a different kind of goal. Balancing the books can be more pleasurable than buying something on impulse.

Previous studies have identified impulsivity among people who want to escape unhappiness and low self-esteem. This 2010 study in the Journal of Experimental Social Psychology found that individuals conspicuously consume to signal their wealth.They need other people to know what they have.

Other research suggests the lower your self-esteem, the more likely you will opt for flashy credit cards with higher fees. Social image is a substitute for self-image, these researchers wrote. Demand for status is psychological in nature. They found that increasing self-esteem causally reduces demand for status goods.

You can lead by example and tell this couple that you decided not to buy a new Tesla or a $30,000 bracelet because you have other priorities. You could tell them how you prefer peace of mind. But the hard truth is you cant get people to see things your way.They are accountable for their own actions.

However, they will do what they do. You would not believe the number of letters I receive from people who sign off with a question like, How can I get her to see this from my point of view? Or, How can I get him to change his ways? You are not responsible for their current or future financial mistakes.

Your relatives problems are likely emotional ones as well as financial. Until they figure that out, and learn how to manage their impulses and spot patterns where theyre headed towards more financial difficulties, history will repeat itself. But its not your job to live their lives for them, as much as you care about their wellbeing.

See also: I dont want to be taken advantage of: My boyfriend moved in during the pandemic and pays me $400 a month

You can email The Moneyist with any financial and ethical questions related to coronavirus at qfottrell@marketwatch.com, and follow Quentin Fottrell onTwitter.

By emailing your questions, you agree to having them published anonymously on MarketWatch.By submitting your story to Dow Jones & Company, the publisher of MarketWatch, you understand and agree that we may use your story, or versions of it, in all media and platforms, including via third parties.

Check outthe Moneyist private FacebookFBgroup, where we look for answers to lifes thorniest money issues. Readers write in to me with all sorts of dilemmas. Post your questions, tell me what you want to know more about, or weigh in on the latest Moneyist columns.

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My husbands sister and brother-in-law declared bankruptcy. The family helped them out but they still spend, spend, spend - MarketWatch

Author: James Guild, RSIS

COVID-19 has battered Indonesian flag carrier Garudas revenue and sent earnings plunging, causing trading of the airlines shares to be halted recently after a bond default. CEO Irfan Setiaputra claimed the airlines total debt was Rp 70 trillion (US$4.9 billion). This led to a meeting with the Ministry of State-Owned Enterprises, which put forward a number of potential resolutions including injections of state capital, privatisation or bankruptcy proceedings while the company restructures some of its debt.

Irfan did not break down the Rp 70 trillion figure in detail, but Garudas most recent financial disclosure from September 2020 provides some clues. By late 2020, total liabilities had ballooned to US$10.36 billion against US$9.9 billion in assets, meaning the company was returning negative US$455 million in equity to its shareholders. With liabilities exceeding assets, financial insolvency is a real concern. This is especially so in Garudas case, as business has been frozen by pandemic-related travel restrictions. According to company operating statistics, international passengers fell from 193,380 in February 2020 to just 8,967 a year later.

This begs the question whether Garudas financial problems should be viewed as a referendum on Indonesias style of state capitalism, or a result of a major and unpredictable external shock to demand. While Garudas corporate management is not blameless, the latter explanation is more persuasive.

No airline in the world has enough cash on hand to deal with an almost 100 per cent drop in international passenger traffic. Even Singapore Airlines, one of the better-run carriers in the region, needed a lifeline from its majority shareholder Temasek and recently had to raise cash through a sale and leaseback of several of its aeroplanes.

Critics have zeroed in on the Rp 70 trillion debt as evidence of corporate mismanagement and an alleged tendency of Indonesian state-owned enterprises to borrow money irresponsibly. But that is not quite true in this case. Garudas liabilities include a US$500 million sukuk bond (an Islamic finance tool similar to a bond), US$922.6 million in bank debt and a growing backlog of trade payables that topped US$1.4 billion last year.

But its balance sheet woes are mainly the product of an accounting rule change rather than an explosion in unsustainable debt. The majority of Garudas new liabilities come from its finance lease obligations. Per the September 2020 financial statement, lease obligations went from US$52.6 million in September 2019 to US$5.1 billion a year later.

Garuda, like many airlines, does not own most of its fleet. Instead it leases the majority of its aircraft from third parties. Prior to 2020, the accounting rules used by the company meant that they only had to record the minimum lease payments as operating expenses when they were incurred. The full value of the remaining lease contracts did not appear on the balance sheet as a liability.

Under new accounting guidelines adopted in 2020, the full value of the outstanding leases now appears on the balance sheet. And under normal business conditions, with healthy cashflow, this would probably not be a problem. For instance, in 2019 Garuda generated over US$600 million in net cash from its operations.

But with cashflow strained, it is a problem. Going forward, Garudas corporate leadership and the government are probably going to use the threat of bankruptcy as leverage as they enter restructuring negotiations with the lessors.

This is the same tactic that Malaysia Aviation Group, Malaysia Airlines parent company, used in early 2021, and it worked for them. After threatening to declare bankruptcy a British court approved an agreement to restructure nearly US$4 billion owed primarily to airplane lessors. Once the deal was in place, sovereign wealth fund Khazanah Nasional Berhad, the groups sole shareholder, injected US$890 million to shore up the airlines balance sheet. We will probably see something similar play out with Garuda. But first, a credible threat of bankruptcy must be made in order to get the creditors to play ball.

This is where the logic of Indonesias state capitalism makes itself apparent. The state will not willingly give up its national airline, either by privatising it or liquidating its assets in bankruptcy. This is a function of economic nationalism as well as a desire to maintain some degree of direct control over a key market.

While Garudas shares are publicly traded, 86 per cent of the company is held by either the government or Chairul Tanjung, one of the wealthiest people in Indonesia. This insulates the airline from the more capricious vagaries of the market because even as they are losing money, they have time to negotiate and consider their options without worrying too much about shareholder pressure. This is important because the interests of shareholders may not always align with economic or political interests of the state.

Arguably a strategic asset like a national airline should not be vulnerable to market pressures where, during times of distress, deep-pocketed investors can snatch it up or shareholders can try to force a sale in order to salvage some value. Instead, the state can ensure the airline limps along until demand recovers, using the threat of bankruptcy to extract more lenient conditions from its creditors along the way.

It may very well be that the way Indonesian state-owned enterprises, including Garuda, manage their debt is not tenable in the long-term. But the financial woes of a state-owned airline during a global pandemic dont tell us much about that, one way or the other.

James Guild is an Adjunct Fellow at the S Rajaratnam School of International Studies, Nanyang Technological University, Singapore.

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Is Garuda Indonesia on the brink of bankruptcy? - East Asia Forum

Distressed-investment manager MatlinPatterson Global Advisers LLC placed two of its funds in bankruptcy in an effort to shield their assets from foreign litigation while it liquidates them and returns the proceeds to investors.

Wednesdays bankruptcy filing covers MatlinPatterson Global Opportunities Partners II LP, as well as an affiliated Cayman Islands fund, which face legal actions in Brazil that have prevented them from returning money to investors, according to papers filed in the U.S. Bankruptcy Court in New York.

The funds raised $1.65 billion, primarily from insurance companies, pension funds and other institutional investors to invest in financially distressed companies across industries including chemicals, security, fashion, and electronics, according to a declaration filed by the funds chief restructuring officer Matthew Doheny.

Beginning in 2013, MatlinPatterson began to wind up the funds, liquidating their investments to return money to their investors. As of June 30, the funds had approximately $142 million in cash, held in bank accounts in the U.S., and $58 million of debt in the form of intercompany promissory notes, Mr. Doheny said.

The two funds are facing an arbitration award against them in Brazil that has been upheld by a Cayman Islands court. The funds are also targets of litigation over their former Brazilian investment vehicle, as well as an enforcement proceeding in a Brazilian court based on an allegation they were responsible for the disappearance of some money in a Brazilian bankruptcy proceeding, according to Mr. Doheny.

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MatlinPatterson Puts Two Funds in Bankruptcy to Fend Off Foreign Litigation - The Wall Street Journal

Michael Hild and his wife Laura are facing a $110 million lawsuit by the Live Well Financial bankruptcy trustee. (BizSense file)

As he awaits sentencing in the criminal trial that found him guilty of a massive bond pricing scheme, Michael Hild has another legal issue to contend with and now his wife has become entangled in the fallout.

The trustee overseeing the bankruptcy of Hilds collapsed Chesterfield-based mortgage company Live Well Financial has filed suit against him, his wife Laura, their various business and real estate holdings, and others, seeking to recoup a total of $110 million in damages for the firms creditors.

Trustee David Carickhoff is looking to place much of blame for the firms demise on the Hilds, claiming Michael looted the once fast-growing reverse mortgage company by masterminding the Ponzi-like scheme and funneling much of the fruits of the fraud to Laura.

Carickhoff also claims that Laura helped her husband in hiding the proceeds of the scheme through more than a dozen LLCs. They used the money and those entities to acquire a collection of real estate and businesses, including dozens of properties on the citys Southside, and a brewery, donut shop and other businesses. The LLCs were all put in Lauras name as federal authorities began zeroing in on the scam, the lawsuit states.

Essentially, the Hild entities functioned like a giant laundry machine, the trustee claims in a 128-page complaint filed last week in federal court in Richmond. Many of the Hild entities conducted no business of their own. They were merely receptacles or conduits for proceeds of Michael Hilds fraud.

Of the millions of dollars that resulted from the bond scheme at Live Well, the trustee claims the Hilds were the biggest beneficiaries, transferring at least $26 million from Live Well to themselves. The filing includes records of hundreds of bank transfers from Live Well to the Hilds and then from them to their businesses.

In addition to extracting monetary damages, the trustee also is looking to take control of the couples business holdings. Carickhoff has asked the court to impose a trust that would hold and maintain the real estate, bank accounts and businesses and other personal property of the Hilds and make those assets of the bankruptcy estate.

The Hilds Dogtown Brewing was open for a time, but has been closed since the start of the pandemic. (Michael Schwartz photos)

That would include wresting control of Church Hill Ventures, which the Hilds used to acquire at least 38 properties in Richmond between 2015 and 2018, using funds that traced back to Live Well. The government found that the Live Well fraud ran from 2014 to 2019.

Also in line to come under the trustees grip is the Hilds Kingfisher LLC and its 17 properties in Richmond, and their Gardenia LLC and its six local properties.

The trustee also wants Andersons Neck Oyster Co., which Hild launched in river country in Shacklefords, Va., and the couples three businesses in Manchester: Butterbean Caf at 1204 Hull St., Dogtown Brewing at 1209 Hull St. and Hot Diggity Donuts at 1213 Hull St.

The lawsuit further claims funds from Live Well were funneled through various LLCs that never actually launched legitimate businesses, including Urban Bleat Cheese Co., Manastoh Brewing, Aragon Coffee Co., Pin Money Pickles and Valentines Meat-Juice Co.

The brewery, donut shop and caf have all been shuttered since the start of the pandemic and the suit claims they werent viable businesses without continued capital that ultimately came from Live Well.

While Laura on paper is the owner of the business entities, Michael held himself out to be part of those ventures, including in media reports. The lawsuit claims Michael transferred ownership of the LLCs to Laura in 2017, as the Securities and Exchange Commission began investigating Live Well.

The lawsuit will attempt to pierce the corporate veil, a move that would allow the trustee to hold Laura equally as liable as Michael.

Hot Diggity Donuts was one of three businesses the Hilds opened along Hull Street in Manchester.

Laura Hild and the Hild entities were necessary to obscure the more than $26 million that Michael Hild looted from Live Well and its creditors, the suit claims.

The complaint also is suing former Live Well CFO Eric Rohr and the head of the companys bond trading department Darren Stumberger. Both men were key witnesses in Michaels criminal trial, have already pleaded guilty to the same fraud charges and are awaiting sentencing.

As a result of their admitted role in the scheme, Rohr received no less than $2.9 million and Stumberger at least $4.1 million from Live Well, the lawsuit claims. It adds that Michael, Stumberger and Rohr used Live Well funds to cover their legal fees related to the collapse of the scheme, to the tune of $3.1 million.

The lawsuit charges Hild, Rohr and Stumberger with breach of fiduciary duty, which would likely trigger insurance policies the company would have held to cover such instances at the time of its collapse. They also face claims of conspiracy, corporate waste and unjust enrichment, all of which caused more than $110 million in damages to the company, the trustee argues.

As for monetary damages, the suit wants a judgment of not less than $27.54 million from the Hilds and their businesses. That would include $26.05 million from Laura individually and $16.96 million from Church Hill Ventures.

It also wants $475,000 from the oyster business, $721,000 from Butterbean, $1.17 million from Dogtown Brewing, $2.11 million from Gardenia, $1.02 million from Kingfisher, and $461,000 from the donut shop.

It wants to hit Hild, Rohr and Stumberger each for their share of $110 million and wants to cancel out the claims Hild and Rohr filed as creditors in the Live Well bankruptcy.

Carickhoff is represented in the litigation by attorneys from Archer & Greiner in Delaware and Blank Rome in Philadelphia.

The Live Well bankruptcy case is playing out in federal court in Delaware, where the company was incorporated.

Its unclear who represents the Hilds in this latest complaint. A message sent to Michaels personal email was not returned as of Tuesday afternoon.

Butterbean Cafe, like the neighboring Hild businesses, has been closed since March.

Michael Hild founded Live Well in 2005, growing it to hundreds of employees at its peak. It was forced into bankruptcyin July 2019 by its three largest creditors, who were left holding the bag on more than $100 million.

Michael was arrested and charged for leading a scheme to defraud the companys lenders by falsely inflating the value of a portfolio of reverse mortgage bonds, in order to induce the lenders into loaning more money to Live Well than they otherwise would have.

He pleaded not guilty and left his fate to a jury in Manhattan federal court. After a three week trial in April, he was found guilty on all five charges he faced, including securities fraud, mail fraud and bank fraud.

The crimes call for a combined maximum of 115 years in prison and maximum fine of $5 million. Hes set to be sentenced Sept. 10, with the ultimate punishment being up to the judge.

Editors Note: In addition to the Hild case, the Live Well trustee filed lawsuits last week against some of the companys former directors and investors, as well as one of its lenders. Stay tuned to BizSense tomorrow for coverage of those cases.

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Live Well Financial bankruptcy trustee targets the Hilds in $110M lawsuit - RichmondBizSense

The company and law firm names shown above are generated automatically based on the text of the article. We are improving this feature as we continue to test and develop in beta. We welcome feedback, which you can provide using the feedback tab on the right of the page.

(Reuters) - Here is a look at some upcoming events of interest to the bankruptcy law community. Unless otherwise noted, all times are local, and court appearances are virtual due to the COVID-19 pandemic.

Wednesday, July 7

3 p.m. Houston-based retail electric provider Griddy Energy will seek approval of its proposed liquidation plan. Griddy filed for bankruptcy after the winter storm in Texas that wiped out power for millions left it owing $29 million to the states grid operator. The liquidation plan forgives customers debts in exchange for release from legal claims. The case is In re Griddy Energy LLC, U.S. Bankruptcy Court, Southern District of Texas, No. 21-30923. For Griddy: David Eastlake, Robin Spigel and Chris Newcomb of Baker Botts.

Thursday, July 8

9:30 a.m. Mall operator Washington Prime Group will seek final approval of a $100 million loan to fund operations during its bankruptcy. The company will also request approval of its proposed sale procedures. The case is In re Washington Prime Group, U.S. Bankruptcy Court, Southern District of Texas, No. 21-31948. For Washington Prime: Chad Husnick of Kirkland & Ellis.

Friday, July 9

9:30 a.m. Boeing equipment supplier TECT Aerospace Group Holdings will hold a sale hearing for its Kansas manufacturing facilities and related business. An auctionwas scheduled for June 30. The case is In re TECT Aerospace Group Holdings Inc., U.S. Bankruptcy Court, District of Delaware, No. 21-10670. For TECT: Daniel DeFranceschi of Richards Layton & Finger.

Know of an event that could be included in Week Ahead in Bankruptcy? Contact Maria Chutchian at maria.chutchian@thomsonreuters.com

Maria Chutchian reports on corporate bankruptcies and restructurings. She can be reached at maria.chutchian@thomsonreuters.com.

Read more:

Week Ahead in Bankruptcy: July 6, 2021 - Reuters

07 July 2021

Dickinson Wright PLLC

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The U.S. Bankruptcy Code (the "Code") 11 U.S.C. 362(a)(1) provides that when a party files for bankruptcy,an automatic stay is triggered. However, it turns out that thereare limitations to the type of cases that these automatic staysextends, and in the employment context, this may not necessarilyinclude wage and hour claims.

For example, in the recent case of Stewart v. Holland Acquisitions,Inc. Case No. 2:15-cv-01094 (W.D. Pa. Feb. 2,2021), the U.S. District Court for the Western District ofPennsylvania held that the U.S. Bankruptcy Code's automaticstay does not extend to enforcement actions brought by the U.S.Department of Labor (DOL) under the Fair Labor Standards Act(FLSA). In applying section 362(b)(4) of the Bankruptcy Code torenounce the application of the stay, the court rejected a contraryholding out of the Sixth Circuit (which hears appeals from districtcourts in Kentucky, Michigan, Ohio, and Tennessee) that an employercannot shield itself from FLSA enforcement actions brought by theDOL by seeking to trigger the automatic stay protection under theBankruptcy Code. The court is now persuasive authority in the ThirdCircuit (which hears appeals from district courts in areas ofPennsylvania, New Jersey, Delaware, and the Virgin Islands).

So, how did this happen? First, Section 362(b)(4) of the Codecarves out a number of exceptions to the reach of the automaticstay, including one for certain police and regulatory actions asfollows:

The filing of a petition...does not operate as a stay...of thecommencement or continuation of an action or proceeding by agovernmental unit...to enforce such governmentalunit's...police and regulatory power, including the enforcementof a judgment other than a money judgment, obtained in an action orproceeding by the governmental unit's...police or regulatorypower[.]

In Stewart, the DOL filed a civil complaint againstHolland Acquisitions, Inc. (Holland), claiming that Hollandwillfully and repeatedly failed to pay its employees overtime andmaintain proper wage and hour records in violation of the FLSA.Holland later filed for chapter 11 bankruptcy protection and soughtto have the FLSA action stayed under the automatic stay provisionof the Code.

The court first found the DOL fell within the definition of a"governmental unit" as defined by section 101(27) of theCode. The court then found that the DOL was not seeking to enforcea pre-existing monetary judgment. Rather, the DOL was seeking tostop further FLSA violations and obtain back wages and liquidateddamages on behalf of the impacted employees.

Holland relied on Chao v. Hospital Staffing Services,Inc., 270 F.3d 374 (6th Cir. 2001) in arguing that the FLSAaction was not rooted in public policy because the DOL was seekingback pay, which is a private right, not a public one. The courtrejected Holland's attempt to stay the FLSA action and foundthat the Sixth Circuit's reasoning in Chao conflictedwith Third Circuit principles and, if applied to Holland,would "substantially impair the core remedial purposes of theFLSA."

In other words, even though the FLSA litigation could result inan award of back pay to specific individuals, the DOL'senforcement power is there to bring violating employers intocompliance with the FLSA. Accordingly, the court held that the DOLcould proceed with its action against Holland, notwithstanding theautomatic stay, which was applicable to stay other claims. However,while the court noted that the automatic stay would not prevent thecourt from entering judgment against Holland, to the extent the DOLobtained any judgment against Holland, enforcement would have to beadjudicated by the bankruptcy court, meaning the collection of anysuch monetary award would be subject to creditor priority rights asotherwise structured under the Code.

Holland's application is limited. First, it onlyapplies to employers within the Third Circuit. Second, it islimited to only wage and hour enforcement actions brought by theDOL. It is not applicable to private causes of actions pursued byemployees directly. The Holland decision does, however,create a circuit split on this issue, which could drive the issueto the U.S. Supreme Court as more and more circuits have theopportunity to weigh in on this issue. So, while not bindingoutside the Third Circuit, the Holland decision willprovide persuasive authority within the Third Circuit that thepolice and regulatory exception under section 362(b)(4) extends toFLSA enforcement actions, meaning the Code's automatic stayprotections will not protect a violating employer from theDOL's wage and hour division's grasp.

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

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