New Cases For the Week of January 17, 2011 - January 21, 2011

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January 20, 2011

Case

Court

Holding

In re Parmalat Capital Finance Limited
(DBN)
2nd Cir.

Section 304 proceedings (foreign bankruptcy proceedings in the US) are "cases" within the meaning of the removal statute. State law claims against accountants are "related to"such § 304 proceedings.

§ 1334(c)(2) abstention is mandatory when, among other things, the matter can be "timely adjudicated" in state court. Whether an action can be timely adjudicated in state court is a mixed question of law and fact. Timeliness cannot reasonably be defined as a fixed period of time. Instead, timeliness is a case- and situation-specific inquiry that requires a comparison of the time in which the respective state and federal forums can reasonably be expected to adjudicate the matter. What might be timely in the Chapter 7 context is not necessarily timely in Chapter 11 cases where time is of the essence. Four factors come into play in evaluating § 1334(c)(2) timeliness: (1) the backlog of the state court's calendar relative to the federal court's calendar; (2) the complexity of the issues presented and the respective expertise of each forum; (3) the status of the title 11 bankruptcy proceeding to which the state law claims are related; and (4) whether the state court proceeding would prolong the administration or liquidation of the estate.

The possibility that remand of the state court claims will slow down the § 304 proceeding is insufficient to show that state court adjudication would be untimely. The inquiry's proper focus is on the timely administration of the estate, not the § 304 proceeding.

Shaoxing County Huayue Import & Export v. Bhaumik
(DBN)
Crt. App. CA

California law does not recognize a general alter ego claim by which a defendant may be held personally liable for a bankrupt corporation's debts in the absence of allegations giving the corporation a right of action against the defendant. Federal bankruptcy cases concluding that a general alter ego claim exists under California law independent of any underlying right of action held by the corporation are incorrect.

Where a creditor was not seek to assert a right of action belonging to the corporation, the court properly found that creditor's action to hold an individual liable as an alter ego for a creditor's substantive causes of action against a bankrupt corporation was not the property of the bankruptcy estate.

     
January 17, 2011

Case

Court

Holding

In re Kaiser Group International, Inc.
(DBN)
Bankr. DE

Although a bankruptcy court is not a "court of the United States" per se, a bankruptcy court has the power to grant sanctions under 28 USC 1927.

Where a debtor intentionally mischaracterized to a bankruptcy court the position that defendant had taken in arbitration, the defendant was entitled to reimbursement of legal costs incurred in responding to the debtor's bankruptcy court Rule 60 motion to stay arbitration.

In re Kummerfeld
(DBN)
Bankr. SD NY If a determination is made that a corporation was a primary violator of the securities laws, a person, who is deemed a control person pursuant to securities laws of such violating corporation, may be held jointly and personally liable for such debt. If that individual files for bankruptcy protection, unless such person can establish an affirmative defense to the control person liability, such debt is nondischargeable, pursuant to 11 U.S.C. § 523(a)(19).
     

 

 
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