On September 12, 2012, CalPERS' general counsel released a
public statement setting forth CalPERS'
legal position on the limitations of the power of the
bankruptcy courts to interfere with the relationship between the
state of California and its municipalities regarding the payment of
retirement and other benefits to state employees.
Pensions and other benefits remain at the forefront of the
municipal financial crisis in California, and it appears that
CalPERS may be setting the stage for forthcoming legal battles in
the Stockton case, and perhaps others. CalPERS has previously
proudly boasted that Vallejo
did not take CalPERS on with respect to pension benefits, but only
healthcare retiree benefits.
commentators have predicted a looming constitutional battle
over pension benefits. The acuteness of the pension crisis was made
plain in a Stanford
Institute for Economic Policy Research Report, published
earlier this year, which concluded that aggregate pension costs
have expanded at a rate of 11.4% per year and pension expenditures
represent 10.1% of total municipal spending.
Whether Stockton, San Bernardino or another municipality will
undertake a war of attrition against CalPERS over pension benefits
remains to be seen.
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The Third Circuit recently held that claims purchased from trade creditors by a claims trader will be disallowed under section 502(d) of the Bankruptcy Code when the seller of the claim received, and did not repay, a preference.
On November 15, 2013, the United States Court of Appeals for the Third Circuit held in KB Toys that certain trade claims purchased on the secondary market were subject to disallowance because the trade creditors that sold those claims had not repaid their preference liability.
Section 553 of the Bankruptcy Code provides, subject to cer¬tain exceptions, that the Bankruptcy Code "does not affect any right of a creditor to offset a mutual debt owing by such credi¬tor to the debtor that arose before the commencement of the case under this title against a claim of such creditor against the debtor that arose before the commencement of the case."
Although its Israel-based electric car company had already filed bankruptcy in its home country, Better Place, Inc., the U.S. parent of the foreign debtor, filed for protection under chapter 15 of the Bankruptcy Code with the United States Bankruptcy Court for the District of Delaware earlier this summer.
The Bankruptcy Court for the District of Delaware recently ruled in In re NE OPCO, INC., 2013 Bankr. LEXIS 4569 (Bankr. D. Del. Nov. 1, 2013), that electricity is not a "good" for purposes of 11 U.S.C. § 503(b)(9).