Section 546(e) of the bankruptcy code bars state law constructive fraudulent conveyance claims asserted by creditors seeking to augment recoveries from a bankruptcy estate
Earlier today, the Second Circuit Court of Appeals issued a decision in In re Tribune Company Fraudulent Transfer Litigation, No. 13-3992-cv, holding that the Bankruptcy Code’s safe harbor of Section 546(e) (the Safe Harbor) prohibits clawback claims brought by creditors under state fraudulent transfer laws to the same extent that it prohibits such claims when brought by a debtor.
In the US distressed market, liability management has emerged as an effective and widely accepted tool to increase liquidity, restructure debts and extend a borrower’s runway to help it avoid insolvency. However, although not unheard of, it is yet to achieve the same prevalence in Europe, where documents are still catching up to the level of flexibility seen in the US, and different capital structures and legal regimes raise different issues.
Summary of recommended changes to the Bankruptcy Code from the ABI Commission to Study the Reform of Chapter 11
Summary of recommended changes
This chart summarizes the Recommendations in the Commission’s Report that relate to or would have an impact on creditors’ rights.
Background
Third-party releases, particularly releases of non-debtor affiliated guarantors, are commonly a critical feature of a successful cross-border restructuring. In U.S. restructurings, where New York law typically governs the arrangements among a borrower, its lenders/noteholders and its guarantors, the restructuring or release of the primary obligor does not, without more, result in the restructuring or release of the guarantors’ obligations in respect of the guarantees. For this reason, in U.S.
Much Anticipated Extraterritoriality Ruling Could Have Far-Ranging Implications
The demand by asset managers, CLOs and other investors for leveraged loans continues to fuel the market for cov-lite loans that include other terms that are attractive for sponsors. These terms often allow for liability management transactions by permitting transfers of assets to unrestricted subsidiaries, or the non-pro rata uptiering of debt and incurrence of super-priority debt with mere majority lender consent.
District Court decides that in a broker-dealer liquidation governed by SIPA, where a trustee seeks to recover funds paid to the defendant under Sections 548(a) and 550(a) of the Bankruptcy Code, which impose liability for fraudulent conveyances where the defendant lacked good faith in receiving the funds: (i) the defendant’s good faith is evaluated under a subjective willful blindness standard, and (ii) to survive a motion to dismiss, the trustee bringing the fraudulent conveyance claims must plead facts sufficient to establish the defendant’s lack of good faith.
On 20 January 2021, the UK High Court approved the convening of a single scheme meeting for certain aircraft lessors of MAB Leasing Limited (MABL) in relation its proposed UK scheme of arrangement. This is an important step towards the implementation of a wider restructuring for the Malaysia Airlines group, but may also have wider implications on the restructuring options available not only to airlines, but also to businesses with other leased assets, including real estate.
Lessors form a single class
Summary
Eastman Kodak Corporation (Kodak US), the US parent of the Kodak group, filed for chapter 11 protection in the US on 19 January 2012. It successfully emerged from bankruptcy on 3 September 2013 as a new restructured technology company focused on imaging for businesses. Many other Kodak companies throughout the world were able to avoid following in their parent’s footsteps and were maintained as going concern businesses while the US bankruptcy process was ongoing.