Except for disastrous fires that sparked the largest bankruptcy filing of the year, liabilities arising from the opioid crisis, the fallout from price-fixing, and corporate restructuring shenanigans, economic, market, and leverage factors generally shaped the large corporate bankruptcy landscape in 2019. California electric utility PG&E Corp.
A basic tenet of bankruptcy law, premised on the legal separateness of a debtor prior to filing for bankruptcy and the estate created upon a bankruptcy filing, is that prepetition debts are generally treated differently than debts incurred by the estate, which are generally treated as priority administrative expenses. However, this seemingly straightforward principle is sometimes difficult to apply in cases where a debt technically "arose" or "was incurred" prepetition, but does not became payable until sometime during the bankruptcy case. A ruling recently handed down by the U.S.
Proposed U.S. Treasury and IRS Regulations Limiting Use of NOLs
To encourage creditors, equity interest holders, indenture trustees and unofficial committees to take actions that benefit a bankruptcy estate, section 503(b)(3)(D) of the Bankruptcy Code confers administrative priority on their claims for expenses incurred in making a "substantial contribution" in a chapter 9 or chapter 11 case. Administrative expense status is also given under section 503(b)(4) to their claims for reimbursement of reasonable professional fees incurred in making a substantial contribution. The U.S.
Section 510(b) of the Bankruptcy Code provides a mechanism designed to preserve the creditor/shareholder risk allocation paradigm by categorically subordinating most types of claims asserted against a debtor by equity holders. However, courts do not always agree on the scope of the provision in attempting to implement its underlying policy objectives. The U.S. Court of Appeals for the Fifth Circuit recently examined the broad reach of section 510(b) in In re Linn Energy, 936 F.3d 334 (5th Cir. 2019).
In In re Ditech Holding Corp., 2019 WL 4073378 (Bankr. S.D.N.Y. Aug. 28, 2019), the U.S. Bankruptcy Court for the Southern District of New York addressed several objections to confirmation of a chapter 11 plan that proposed to sell home mortgage loans "free and clear" of certain claims and defenses of the homeowner creditors, contrary to a provision of the Bankruptcy Code—section 363(o)—which was enacted in 2005 to prevent free and clear sales of certain claims and defenses relating to consumer credit agreements.
Proposed Amendments to Chapter 15 of the Bankruptcy Code
优先清算权条款是境外风险投资项目的常见条款，随后逐渐在国内私募股权投资文件中采用。很多投资人关心，这一舶来品能否获得中国司法机关的认可，我们简要分析如下：
一、什么是优先清算权
优先清算权，是指公司清算时，部分股东优先于其他股东获得剩余财产分配的权利；或者，在约定的“视同清算事件”发生时，部分股东优先于其他股东从公司获得收益的权利，“视同清算事件”通常包括公司合并、被并购、出售控股股权、出售主要资产等事件。
在私募股权投资项目中，投资人为保障其自身权益采用优先清算权条款，目的是：在公司经营不善遭遇清算时，投资人可以优先拿回一些补偿；在投资人无法通过公司上市退出，发生公司被并购等“视同清算事件”发生时，其能够优先收回其投资成本和一定程度的投资回报，实现资产变现。该条款可谓投资人的“分钱利器”。
二、如何看待该条款效力
《公司法》第34条明确规定股东可以自由约定“利润分配”的比例。该条规定：“股东按照实缴的出资比例分取红利；公司新增资本时，股东有权优先按照实缴的出资比例认缴出资。但是，全体股东约定不按照出资比例分取红利或者不按照出资比例优先认缴出资的除外。”
In In re Energy Future Holdings Corp., 2019 WL 2535700 (3d Cir. June 19, 2019), a panel of the U.S. Court of Appeals for the Third Circuit ruled that adequate protection payments made during a bankruptcy case and distributions under a chapter 11 plan are not distributions of collateral for purposes of a "waterfall" provision in an intercreditor agreement.
Intercreditor and Subordination Agreements
Small Business Reorganization Act of 2019