The ruling: Chapter 15 Debtors can assert avoidance actions under state law On March 23, 2017, the United States Bankruptcy Court for the Southern District of Florida, Miami Division, ruled that a foreign debtor could use Chapter 15 to assert “avoidance actions” in the US under state law (in this case New York fraudulent conveyance statutes). In 2010, the United States Fifth Circuit Court of Appeals similarly ruled that a foreign debtor could use Chapter 15 to assert “avoidance actions” in the US based on foreign law.

Cleary Gottlieb Steen & Hamilton LLP recently represented Far-Eastern Shipping Company plc, a public company incorporated in Russia, and certain of its affiliates in their restructuring of over USD 1 billion of debt. Part of the restructuring involved the negotiation of a compromise arrangement with certain note holders under two series of EU listed U.S. dollar denominated Eurobonds with trust deeds governed by English law.

Earlier this week, the U.S. Supreme Court issued its unanimous decision in Merit Management Group, LP v. FTI Consulting, Inc., holding that 11 U.S.C § 546(e), which creates a safe harbor against the avoidance of certain transfers made “by or to (or for the benefit of)” financial institutions, does not apply merely because the challenged transfer is completed through a financial institution.

On February 21, 2018, the U.S. Treasury Department released its long-awaited report on the Orderly Liquidation Authority (OLA) established under Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act). The report, Orderly Liquidation Authority and Bankruptcy Reform (the Report), recommends retaining OLA and adopting a new Chapter 14 of the U.S. Bankruptcy Code (the Code) to make resorting to OLA proceedings less likely.

On February 21, 2018, the Securities and Exchange Commission (the “Commission”) published interpretive guidance to assist public companies when considering, drafting and issuing disclosure about cybersecurity risks and incidents (the “interpretive guidance”). The interpretive guidance became effective immediately upon issuance. The Commission’s interpretive guidance reaffirms and expands upon guidance issued by the Division of Corporation Finance in 2011 (the “Division guidance”) relating to the disclosure of cyber-related matters.

In a significant development for companies relating to the Foreign Corrupt Practices Act (FCPA), in late November the U.S. Department of Justice (DOJ) announced a new FCPA Corporate Enforcement Policy (the Enforcement Policy). Click here for more.

There has recently been a resurgence of interest in special purpose acquisition companies (SPACs), which are also known as ‘blank check’ or ‘cash shell’ companies. Over the past 7 years SPACs incorporated in the British Virgin Islands (BVI) have raised aggregate capital of over US$5 billion and, in 2017 alone, new BVI SPACs raised gross proceeds of approximately US$2.5 billion1. This article outlines the key features of a SPAC, explores recent market trends and explains why the BVI is a popular domicile for these vehicles.

Below are links to a full month’s worth of posts from the Cleary Cybersecurity and Privacy Watch blog.

On January 25, 2018, the United States Court of Appeals of the Ninth Circuit (the “Ninth Circuit” or the “Court”) held that section 1129(a)(10) of the Bankruptcy Code, which requires that to confirm a plan there must be at least one impaired accepting class, applies on a “per-plan” basis, rather than a “per-debtor” basis. JPMCC 2007-C1 Grasslawn Lodging, LLC v. Transwest Resort Props. Inc., et al. (In re Transwest Resort Props. Inc.), No. 16-16221, 2018 U.S. App. LEXIS 1947 (9th Cir. Jan.