Case Updates

A rundown of newly-published labor and employment cases from the Labor and Employment Law Section eNews. Read more

The Supreme Court of Virginia, in a case of first impression, joined the majority of states in ruling that the contractual subordination of a first priority lien to a third priority lien was a partial subordination and did not elevate the second priority lien to first position. Futuri Real Estate, Inc. v. Atlantic Trustee Services, LLC, 835 S.E. 2d 75 (Va. Nov. 27, 2019). Read more

The Massachusetts Supreme Court, in a case of first impression anywhere in the country, held that the federal Volunteer Protection Act provides a qualified immunity from suit, not just liability. Lynch v. Crawford, 2019 WL 6711385 (Mass. Dec. 10, 2019). Read more

A California appellate court ruled that a party seeking to compel arbitration failed to satisfy its evidentiary burden of showing the plaintiff electronically signed the arbitration agreement using DocuSign. [Fabian v. Renovate America, Inc., 2019 WL 6522978 (Cal. Court of Appeal, Nov. 19, 2019, ordered published on Dec. 4, 2019).] Read more

The Ninth Circuit Bankruptcy Appellate Panel Reverses Bankruptcy Court Because The Court Did Not Require The Filing Of A List of Creditors And Did Not Give An Opportunity For Other Creditors to Join To Meet the Numerosity Requirement. In re QDOS, Inc., Ninth Circuit BAP # CC 18-1301, 2019 WL 5808794 Nov. 7, 2019. Read more

The First Circuit reversed a bankruptcy court order granting summary judgment in favor of a college on a constructive fraudulent transfer claim to avoid and recover tuition payments made by parents who were insolvent and pled guilty to operating a Ponzi scheme. Read more

In Leslie v. Mihranian (In re Mihranian), 937 F.3d 1214 (9th Cir. 2019), in a unanimous opinion, a panel of the U.S. Court of Appeals for the Ninth Circuit affirmed the U.S. Bankruptcy Appellate Panel for the Ninth Circuit in holding that a party moving to substantively consolidate non-debtors with a debtor must give notice of the motion to creditors of the non-debtors as well as the debtor, its creditors and the non-debtors. Read more

In Gwendolyn Washington v. Real Time Resolution, Inc. (In re Washington), 602 B.R. 710 (B.A.P. 9th Cir. 2019), the Bankruptcy Appellate Panel for the Ninth Circuit, resolving a split of authority, held that, in a “chapter 20” case, a prior chapter 7 discharge enjoins enforcement of an unsecured claim against the debtor personally, and such claim is not resurrected even after the underlying lien has been stripped and valued at zero in a subsequent chapter 13 case. Read more

In Waldron v. FDIC, 935 F.3d 844 (9th Cir. 2019), the U.S. Court of Appeals for the Ninth Circuit held that (a) the FDIC acting as a receiver for a failed bank is a “United States agency” under Rule 4 of the Federal Rules of Appellate Procedure and therefore has 60 days in which to file a notice of appeal, and (b) a bankruptcy court lacks subject matter jurisdiction over a preference action against the FDIC unless the preference is asserted solely as an affirmative defense to a claim by the FDIC against the bankruptcy estate. Read more

In Todeschi v. Juarez (In re Juarez), 603 B.R. 610 (9th Cir. BAP 2019), the United States Bankruptcy Appellate Panel for the Ninth Circuit, in a case of first impression in the circuit, affirmed the confirmation of the debtor’s chapter 11 plan and held that exempt property is not properly included within the phrase “any property” under the absolute priority rule, which generally prohibits a debtor from retaining “any property” under a plan that does not pay creditors in full. Accordingly, the debtor did not need to provide new value for the exempt property he was retaining in order to meet the requirements of Section 1129(b) for confirmation. Read more