Congratulations to the following Lowis & Gellen partners, recognized as 2011 Leading Lawyers "Chicago Area Top Lawyers" by Chicago Lawyer Magazine.
Robert Smith, Jennifer Lowis, Pam Gellen, Mark Smith, Gerald Haberkorn, and Andrea Kott.

Christopher Cahill will be the sole speaker at a Lorman Education CLE presentation on August 7, 2012 entitled, "Adding New Avoidance Defendants After the Expiration of the Limitations Period." Mr. Cahill will discuss the proof required under Federal Rule of Civil Procedure 15 -- which governs the amendment and relation back of complaints to add new defendants -- in light of clarifications made by the Supreme Court in Krupski v. Costa Crociere S.p.A., 130 S.Ct. 2485 (2010). While he will focus on adding defendants to adversary complaints in bankruptcy litigation, Mr. Cahill's presentation will apply also to other federal civil litigation and to state litiigation under analogous rules.

Dismissal of Emergency Department in Arm Amputation

Lowis & Gellen, LLP has obtained a directed verdict for a Chicago community hospital and its emergency medicine department. A 52-year old woman got her hand and wrist caught in her overhead garage door, causing what was diagnosed as a minor fracture and cuts. The emergency department represented by Lowis & Gellen bandaged the cuts and referred her to an orthopedic surgeon for further care. No antibiotics or other medications were administered. Over the next several days the wound became infected, spreading to the bones of the wrist. After weeks of treatment, an amputation of the arm slightly below the elbow was necessary to save her life. Attorney Scott R. Wolfe aggressively filed counterclaims alleging the patient’s own delay in seeking follow up treatment recommended was the cause of her amputation. After allowing years of litigation and giving the plaintiff every opportunity to counter the defense, the presiding Judge was so overwhelmingly convinced by the defense, she refused to allow the case against Mr. Wolfe’s client go before a jury. She dismissed the case. The case will proceed to trial against an orthopedic surgeon, not represented by Lowis & Gellen, who saw the plaintiff after her brief hospital contact. For more information on the case or for general information regarding Lowis & Gellen’s professional malpractice group or general liability practice please contact Scott R. Wolfe at (312) 456-2709 or swolfe@lowis-gellen.com.

Christopher Cahill's article, "Commodity Supply Agreements Are Swap Agreements: A Counter-Intuitive But Quite Real Safe Harbor From Preference Avoidance,” has been published in International Corporate Rescue and analyzes a defense for commodity suppliers against the avoidance and recovery of transfers to such suppliers from debtors under the Bankruptcy Code.

Section 546(g) of the Bankruptcy Code exempts from preference or constructive fraudulent transfer the avoidance of any transfer made pursuant to a swap agreement with the Debtor. The Code's financial derivative safe harbor provisions and related definitions are broadly-worded. The Code's definition of "swap agreement" includes "commodity forward agreement." A "commodity forward agreement" is, for the Fourth Circuit Court of Appeals and other courts, a commodity supply agreement for future physical deliveries, which is used as a hedge.

Thus, creditors of United States bankruptcy debtors who supply or receive oil, natural gas, steel, polypropylene or any other commodity may do so pursuant to a contract that can be construed as a "swap agreement" that supports a total defense to avoidance of transfers received from the debtor. Implications with respect to other safe harbor provisions of the inclusion of "commodity forward agreement" within the definition of "swap agreement" will be the subject of a future paper.

This article first appeared in International Corporate Rescue (Volume 8, issue 4) and is reproduced with the kind permission of Chase Cambria Company (Publishing) Limited.

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Rob Smeltzer been asked by the Northeast Circuit Clerks Association to give a speech at their 2012 Educational Conference, "Social Media Use from the Employer's Perspective - What are your legal rights?"

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