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parties actually intended and acted on.
432 F.3d at 455-6.7
Although the Ninth Circuit has created
the opportunity for nine separate rules
for recharacterization within its own
borders, many states in the circuit do
not appear to have a developed rule
on the issue, and those state courts
that have considered it appear to have
gotten to similar results either using
state-law principles of corporate
fiduciary duty, see, e.g. Saviano v.
Westport Amusements, Inc., 144
Wash. App. 72, 180 P.3d 874 (2008),
or adopting the reasoning of either
Autostyle Plastics or Submicron. See,
e.g., Idaho Development, LLC v. Teton
View Golf Estates, LLC, supra, 152
Idaho at 409, 272 P.3d at 381 (2011)
(adopting Submicron). Therefore, the
potential welter of confusion may not,
ultimately, come to pass. But it could. J
1 The Ninth Circuit presently consists of
Alaska, Arizona, California, Hawaii, Idaho,
Montana, Nevada, Oregon, and Washington.
2 The Bankruptcy Court docket
number is 2:08-bk-27527-BR.
3 The Ninth Circuit held in a footnote
that the district court had erred in
considering itself bound by a decision
of the BAP. 714 F.3d at 1144 n. 3.
4 In an unpublished, nonprecedential
memorandum opinion issued the same day,
the Ninth Circuit reversed and remanded to
the district court the dismissal of the claims
against the individual defendants and Hancock
Park for breach of fiduciary duty because the
district court’s legal error had “infected” its
dismissal under Pacific Express, and upheld the
dismissal of fraudulent transfer claims against
Western Pacific based on the loan transaction
and related grant of security interests.
5 Congress was given the power “To
establish … uniform Laws on the subject
of Bankruptcies throughout the United
States.” U.S.Const. art. I, § 8, cl. 4.
6 See Fraudulent Transfer Act Committee, 2013
Proposed Amendments To Uniform Fraudulent
Transfer Act at 45, www.uniformlaws.org/
Committee.aspx?title=Fraudulent Transfer Act
7 The precise impact of Kabuki awaits
further judicial elucidation.
Joe Huston (top photo) and Bob Lapowsky (bottom
photo) are shareholders of Stevens & Lee P.C. and
co-chairs of the firm’s Bankruptcy and Financial
Restructuring Group. Huston is resident in the firm’s
Wilmington, Delaware, office. He has represented
virtually every constituency in the reorganization
process and related litigation, focusing particularly
on official and ad hoc committees of creditors
and interest holders. Lapowsky practices out of
the firm’s Philadelphia office and concentrates
his practice in representing Chapter 11 debtors,
institutional creditors, and acquirers of distressed
assets. Huston can be reached at jhh@stevenslee.
com or 302-425-3310, and Lapowsky can be
reached at email@example.com or 215-751-2866.
The authors gratefully acknowledge the
thorough research of Ninth Circuit state law
performed by Camille C. Bent, an associate
in Stevens & Lee’s New York office.