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Expert Analysis

The Search For 'Unreasonably Small Capital'

Law360, New York ( May 17, 2016, 12:40 PM EDT) -- In a decision last month in Whyte v. SemGroup Litigation Trust (In re SemCrude LP), No. 14-4356, 2016 U.S. App. LEXIS 7690 (3d Cir. Apr. 28, 2016), the United States Court of Appeals for the Third Circuit held that proving that a debtor was left with unreasonably small capital will not turn on either hindsight or a "speculative exercise" based on what might have happened if certain things were known at the time. Even though the decision was "not precedential" since it was not issued by the full court, because it affirmed decisions of the bankruptcy and district courts, it is likely to have far-reaching significance in fraudulent conveyance litigation....

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