The High Court has recently considered a number of questions of contractual construction in the context of guarantees: Barclays Bank plc v Price & Ors [2018] EWHC 2719 (Comm). 

District Court Confirms Bankruptcy Court’s Constitutional Authority to Approve Millennium Plan Releases, Dismisses as Equitably Moot Opt-Out Lenders' Remaining Issues on Appeal

The recent Court of Appeal decision inLBI EHF v Raiffeisen Bank International AG [2018] EWCA Civ 719 affirms the wide discretion of the non-Defaulting Party to determine "fair market value" in accordance with the close-out mechanism under paragraph 10(e)(ii) of the standard Global Master Repurchase Agreement (2000 version) ("GMRA").

Lehman Brothers Special Financing Inc. v National Power Corporation & Anor [2018] EWHC 487 (Comm) is a significant case on the calculation of Close-out Amount under the 2002 ISDA Master Agreement.  

Two important points of principle arise from this judgment, which will have general application to transactions governed by the 2002 ISDA Master Agreement:  

In Mission Product Holdings Inc. v. Old Cold LLC (In re Old Cold LLC), 879 F.3d 376 (1st Cir. 2018), the First Circuit held that a sale in possible violation of the Supreme Court’s Jevic decision does not allow an appellate court to examine the merits of the sale when the sale-approval order otherwise is statutorily moot under section 363(m).

Delaware District Judge Leonard P. Stark has seemingly split with the Second Circuit and held that the safe harbor in Section 546(e) of the Bankruptcy Code does not bar fraudulent transfer claims brought on behalf of creditors under state law, ratifying a June 2016 opinion from Delaware Bankruptcy Judge Kevin Gross.

The High Court has recently considered the interpretation of Section 6(a) of the 1992 ISDA Master Agreement: Grant & Ors v WDW 3 Investments Ltd & Anor [2017] EWHC 2807 (Ch).

The Bankruptcy Protector

Back in September, the Bankruptcy Protector announced that was introducing a new periodic series: theJevic Files. As promised, we have published intermittent updates identifying cases where Jevic priority skipping issues are raised and adjudicated.

In this post, we attempt to provide a succinct summary of all cases decided post-Jevic.

How Courts Are Applying Jevic

If, like me, you have ever scratched your head in confusion while preparing your taxes and thought to yourself – “I can’t believe the IRS takes such an absurd position on xyz tax exemption I want to use – who comes up with these crazy positions?” – then you might take some pleasure in a recent opinion from Judge Gross of the United States Bankruptcy Court for the District of Delaware calling an argument made by the IRS “strained and a bit confusing.” You read that right.

The U.S. Supreme Court will hear oral argument today inU.S. Bank National Association v. Village at Lakeridge (15-1509). At issue in the case is whether the appropriate standard of review for determining non-statutory insider status is the de novo standard of review applied by the U.S. Courts of Appeals for the 3rd, 7th and 10th Circuits, or the clearly erroneous standard of review adopted for the first time by the U.S. Court of Appeals for the 9th Circuit in Village at Lake Ridge.