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New Cases For the Week of June 23,
2003 - June 27, 2003
Brought to you by BKINFORMATION.COM
- The Source for Business Bankruptcy Information on the Internet
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June
25, 2003
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Case
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Court
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Holding
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Dechert
v. Cadle Company
(DBN Subscription Required) |
7th
Cir. |
While
the Court declined to establish a flat
rule that a bankruptcy trustee or DIP is
never an adequate class representative in
a class action, in most cases conflicts of
interest will prevent such certification.
In the
usual class action the named plaintiff is
a nominal party and the real party is the
lawyer for the class. The lawyer has no
reason to favor the named plaintiff over
the rest of the class members. When the
named plaintiff is a fiduciary, however,
he cannot just "go along" with
the class lawyer. He has a duty to seek to
maximize the value of his claim, and this
duty may collide with his fiduciary duty
as class representative (if he is
permitted to be the class representative)
to represent all members of the class
equally. Such a collision is especially
likely in a case in which the fiduciary is
a trustee in bankruptcy, because
class-action litigation tends to be
protracted yet the Bankruptcy Code
requires the trustee to complete his work
expeditiously. 11 U.S.C. § 704(1). |
In
re Service Merchandise Company, Inc.
(DBN Subscription Required) |
6th
Cir. |
No
sovereign immunity exists as to bankruptcy
matters. At the Constitutional Convention,
the states granted Congress the power to
abrogate their sovereign immunity under
Article I, section 8. In 11 U.S.C. §
106(a), Congress used that power to grant
states a benefit they had sought. |
Local
Union No. 38, Sheet Metal Workers'
International Association, AFL-CIO v.
Custom Air Systems, Inc.
(DBN Subscription Required) |
2nd
Cir. |
A
notice of appeal is timely filed if (1)
the thirty-day time limit specified in
Rule 4(a) has not expired before the
filing of a bankruptcy petition, and (2)
the notice of appeal is filed no later
than sixty days after the order of
relief. 11 USC 108. |
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June
23, 2003
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Case
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Court
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Holding
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In
re DLC, Ltd.
(DBN Subscription Required) |
8th
Cir. BAP |
In
a 544(b) action, the trustee must identify
a creditor with an allowable unsecured
claim who had an allowable claim against
the debtor on the date the bankruptcy
petition was filed. Postpetition
payment of such a qualifying unsecured
creditor will not serve to defeat the
vesting of 544(b) rights as of the
petition date. |
In
re Summers
(DBN Subscription Required) |
9th
Cir. |
The
California transmutation statute does not
apply when realty is transferred from a
third party to spouses as joint tenants. |
In
Bristol Resources 1994 Acquistion Limited
Partnership
(DBN Subscription Required) |
5th
Cir. |
The
bankruptcy court did not err in declining,
on grounds of comity, to abstain from
determining whether certain claims pending
in State court were derivative or direct
claims when the State court had previously
ruled that there were no derivative clams
pending. |
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