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New York District Court: Cap on Landlord Claims in Bankruptcy Applies to Claims Against Lease Guarantors, and Cap Should Be Calculated Using "Time Approach"

To prevent landlords under long-term real property leases from reaping a windfall for future rent claims at the expense of other creditors, the Bankruptcy Code caps the amount of a landlord's claim against a debtor-tenant for damages "resulting from the termination" of a real property lease.

USA, New York, Insolvency & Restructuring, Litigation, Real Estate, Jones Day, Drones, Bankruptcy, Landlord
Collective Redundancies on Insolvency: Irish Employee Rights Bolstered

The Employment (Collective Redundancies and Miscellaneous Provisions) and Companies (Amendment) Act 2023 (Collective Redundancies AmendmentAct) came into operation on 1 July 2024.

Ireland, Employment & Labor, Insolvency & Restructuring, William Fry, Insolvency
Additional Rights to Information for Employees of Insolvent Companies

The Employment (Collective Redundancies and Miscellaneous Provisions) and Companies (Amendment) Act 2023 (Act) came into effect on 1 July 2024.

Ireland, Employment & Labor, Insolvency & Restructuring, Litigation, William Fry, Insolvency
First Impressions: Seventh Circuit Rules that the Bankruptcy Code's "Safe Harbor" for Securities Contracts Transfers Applies to Non-Public Securities

Section 546(e) of the Bankruptcy Code's "safe harbor" preventing avoidance in bankruptcy of certain securities, commodity, or forward-contract payments has long been a magnet for controversy. Several noteworthy court rulings have been issued in bankruptcy cases addressing the scope of the provision, including its limitation to transactions involving "financial institutions" as transferors or transferees, its preemption of avoidance litigation that could have been commenced by or on behalf of creditors under applicable non-bankruptcy law, and its application to non-public transactions.

USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Private equity, Supreme Court of the United States, Seventh Circuit
Changes to the Realisation of Assets of Companies in Liquidation

The Employment (Collective Redundancies and Miscellaneous Provisions) and Companies (Amendment) Act 2024 (Act) has been signed into law but awaits a commencement order to bring it into operation.

In summary, the Act amends the Companies Act 2014 (Companies Act) by modifying the attribution test for related companies to contribute to the debts of the company being wound up, broadening the operative time for unfair preferences, and varying the test for reckless trading.

1. Related company contribution

Ireland, Company & Commercial, Insolvency & Restructuring, Litigation, William Fry, Liquidation
Keeping It in the Family: Bankruptcy Court Discusses Factors for Application of New Value Exception to Absolute Priority Rule

One of the fundamental goals of a chapter 11 bankruptcy is the maximization of value available for distribution to creditors. The "absolute priority rule" generally applicable in chapter 11 requires that each class of impaired and unaccepting creditors be paid in full before any junior class of claims or interests may receive distributions under the plan. Courts recognize a limited exception to the absolute priority rule, however, allowing prepetition shareholders to retain their interest in the debtor where they contribute new value toward the debtor's reorganization.

USA, Insolvency & Restructuring, Litigation, Jones Day, Supreme Court of the United States
Directors' Duties: UK High Court gives further guidance on 'Creditor Duty' for Directors

Following on from the UK Supreme Court decision in Sequana (discussed here), the recent UK High Court (UKHC) decision in Hunt v Singh [2023] EWHC 1784 (Ch), further considered the duty of directors to take into account the interests of creditors in certain circumstances.

Ireland, Insolvency & Restructuring, Litigation, William Fry, UK Supreme Court
New York Bankruptcy Court: Setoff and Unjust Enrichment Cannot Be Asserted as Affirmative Defenses in Bankruptcy Avoidance Litigation

In a 2021 ruling, the U.S. Court of Appeals for the Second Circuit revived nearly 100 lawsuits seeking to recover fraudulent transfers made as part of the Madoff Ponzi scheme. In one of the latest chapters in that resurrected litigation, the U.S. Bankruptcy Court for the Southern District of New York held in Picard v. ABN AMRO Bank NV (In re Bernard L. Madoff Investment Securities LLC), 654 B.R. 224 (Bankr. S.D.N.Y.

USA, Insolvency & Restructuring, Litigation, Jones Day, Supreme Court of the United States
Cross-Examining Affidavit Evidence in Insolvency Cases

The High Court (Court) recently dismissed a petition seeking the winding up of a biofuel company (Company).

The ex tempore judgment is of note because it considers the standing of the Petitioner to bring the application and the consequences of a relevant witness not being cross-examined by the Petitioner on his affidavit evidence regarding the solvency of the Company.

Background

Ireland, Insolvency & Restructuring, Litigation, William Fry, Insolvency
Court's Broad Interpretation of Definition of "Securities Contracts" Promotes Expansive Scope of Bankruptcy Code "Safe Harbor"

Section 546(e) of the Bankruptcy Code's "safe harbor" preventing avoidance in bankruptcy of certain securities, commodity, or forward-contract payments has long been a magnet for controversy. Several noteworthy court rulings have been issued in bankruptcy cases addressing the application of the provision, including application to financial institutions, its preemptive scope, and its application to non-publicly traded securities.

USA, Capital Markets, Insolvency & Restructuring, Litigation, Jones Day, Private equity, Supreme Court of the United States