U.S. Court of Appeals for the Third Circuit

On August 29, 2016, the Third Circuit released a precedential opinion (the “Opinion”) which opined that a “[redemption] premium, meant to give the lenders the interest yield they expect, [does not] fall away because the full principal amount is now due and the noteholders are barred from rescinding the acceleration of debt.”  The Third Circuit’s

On August 29, 2016, the Third Circuit released a precedential opinion (the “Opinion”) which opined on whether filing an involuntary bankruptcy petition could qualify as tortious interference under state law.  The Third Circuit’s Opinion is available here.  This Opinion was issued in Rosenberg v. DVI Receivables XVII, LLC, Case No. 15-2622.  The District Court had

In the recent Third Circuit decision of In re Lower Bucks Hospital, No. 13-1311 (3d Cir. July 3, 2014), the Third Circuit upheld the ruling of the Bankruptcy Court for the Eastern District of Pennsylvania that non-consensual releases were not part of the debtor’s plan of reorganization due to failure to adequately disclose the

Below is a post from Michael Temin, senior counsel with Fox Rothschild.


Bankruptcy Code § 365(d)(3) requires the trustee or the debtor in possession to “timely perform all the obligations of the debtor . . .arising from and after the order for relief under any unexpired lease of nonresidential real property, until such lease is assumed or rejected, notwithstanding section 503(b)(1).” In 2001 the Third Circuit construed this section to require the debtor to perform the lease in accordance with its terms. CenterPoint Properties v. Montgomery Ward Holding Corp. (In re Montgomery Ward Holding Corp.), 268 F.3d 205 (3d Cir. 2001).

Continue Reading Third Circuit Affirms Delaware Bankruptcy Court Stub Rent Decision

I am proud to introduce a contributing "blogger" to the Delaware Bankruptcy Litigation Blog.  As a frequent author and speaker on corporate bankruptcy, Michael Temin needs no introduction.  Michael is senior counsel with Fox Rothschild, a contributing author to Collier on Bankruptcy, Collier Bankruptcy Practice Guide and co-editor of the Pennsylvania Ethics Handbook (2008).  The following is Michael’s summary of a recent Third Circuit decision in the Grossman’s bankruptcy.  I want to thank Michael for sharing his work with us and look forward to his future posts on this blog.


In 1984 a Third Circuit panel decided that the automatic stay did not apply to a right to payment which arose under applicable state law after a bankruptcy petition was filed. Avellino & Bienes v. M. Frenville Co., 744 F.2d 332 (3d Cir. 1984). The Third Circuit tradition is that the holding of a panel in a precedential opinion is binding on subsequent panels. Until this year Frenville remained good Third Circuit law notwithstanding universal rejection by other circuits.


In In re Grossman’s Inc., 607 F.3d 114 (3d Cir. 2010), the Third Circuit en banc overruled Frenville. After discussing the conduct test (a claim arises when the acts giving rise to the defendant’s liability were performed, not when the harm caused by the acts was manifested) and the pre-petition relationship test (a claim arises from a debtor’s pre-petition tortious conduct where there is also some pre-petition relationship between the debtor and the claimant), the Third Circuit held that a tort claim arises when an individual is exposed pre-petition to a product or other conduct giving rise to an injury which underlies a “right to payment” under the Bankruptcy Code.

Continue Reading Frenville Overruled