On October 17, 2022, Justice Andrea Masley of the NY Supreme Court issued a decision and order denying all but one of the motion to dismiss claims filed by Boardriders, Oaktree Capital (an equity holder, term lender, and “Sponsor” under the credit agreement), and an ad hoc group of lenders (the “Participating Lenders”) that participated in an “uptiering” transaction that included new money investments and roll-ups of existing term loan debt into new priming debt that would sit at the top of the company’s capital structure.

On October 14, 2022, the Fifth Circuit issued its decision in Ultra Petroleum, granting favorable outcomes to “unimpaired” creditors that challenged the company’s plan of reorganization and argued for payment (i) of a ~$200 million make-whole and (ii) post-petition interest at the contractual rate, not the Federal Judgment Rate. At issue on appeal was the Chapter 11 plan proposed by the “massively solvent” debtors—Ultra Petroleum Corp. (HoldCo) and its affiliates, including subsidiary Ultra Resources, Inc.

On July 6, Delaware Bankruptcy Court Judge Craig T. Goldblatt issued a memorandum opinion in the bankruptcy cases of TPC Group, Inc., growing the corpus of recent court decisions tackling “uptiering” and other similar transactions that have been dubbed by some practitioners and investors as “creditor-on-creditor violence.” This topic has been a hot button issue for a few years, playing out in a number of high profile scenarios, from J.Crew and Travelport to Serta Simmons and TriMark, among others.

The Italian government has postponed again the entry into force of Legislative Decree No. 14 dated 12 January 2019 (the "Insolvency Code"), taking into account the COVID-19 impact on the socio-economic scenario and the framework set forth by Directive (EU) 2019/1023.

By Law Decree No. 118 dated 24 August 2021 (the "Law Decree"), the Italian government has postponed the entry into force of the Insolvency Code, which provides for an in-depth reform of the Italian insolvency law.

Italy has fully integrated the European Account Preservation Order into its procedures alongside existing protective tools available to creditors, who can now also request that their debtors' bank accounts in the European Union be frozen directly by the account bank.

On October 18, 2020 Italy adapted its civil procedure rules to incorporate the European Account Preservation Order ("EAPO") (introduced by EU Regulation 655/2014, in force since January 2017 ("the Regulation")) as an additional protective measure in favor of creditors.

On August 26, 2020, the Court of Appeals for the Third Circuit held that the Bankruptcy Code does not require subordination agreements to be strictly enforced in order for a court to confirm a cramdown plan, so long as the plan does not discriminate unfairly.

In Short

The Situation: The COVID-19 pandemic is having an impact on businesses across various sectors in Italy.

The Action: Further to the Law Decree No. 18 of March 17, 2020 (the "Cura Italia Decree"), the Italian Government recently enacted the Law Decree No. 23 of April 8, 2020 (the "Liquidity Decree"), implementing a number of additional measures aimed at mitigating the adverse economic impact of COVID-19.

On December 19, 2019, the Second Circuit held that appellants’ state law constructive fraudulent transfer claims were preempted by virtue of the Bankruptcy Code’s safe harbors that exempt transfers made in connection with a contract for the purchase, sale or loan of a security from being clawed back into the bankruptcy estate for

On January 14, 2020, the Supreme Court of the United States issued a decision resolving the question of whether a motion for relief from the automatic stay constitutes a discrete dispute within the bankruptcy that creates a basis for a final appealable ruling, or whether it simply is a controversy that is part of the broader Chapter 11 case, such that appeals would not need to be taken until the conclusion of the Chapter 11 case.

Italy recently enacted a new insolvency code (the "New Insolvency Code"), which takes effect August 14, 2020.