Lowenstein Sandler’s previous articles on crypto bankruptcies discussed the role of a creditors’ committee in protecting the rights of customers and confirmation issues arising in crypto cases. This article will delve deeper into the administration of a crypto bankruptcy case by discussing the role of a creditors’ committee in investigating, preserving, and pursuing causes of action for the benefit of a debtor’s creditors.

Lowenstein Sandler’s previous article on crypto bankruptcies discussed some bankruptcy basics and the role of a creditors’ committee in protecting the rights of customers. This article will delve deeper into the administration of a crypto bankruptcy case by discussing the negotiation of a crypto bankruptcy plan of reorganization.

The recent bankruptcy filings of Voyager Digital Holdings, Inc. (Voyager) and Celsius Network LLC (Celsius) have abruptly introduced many customers to the bankruptcy process for the first time. Lowenstein Sandler’s experienced bankruptcy and crypto practices are monitoring these cases–and the entire crypto market–to help keep crypto customers and other interested parties educated and informed with respect to the bankruptcy process and what to expect going forward.

Who Is Protecting Your Rights?

Introduction

The concept of winding up does not exclusively apply to insolvent companies. Solvent companies can also be wound up, on the initiation of the company’s directors and shareholders (for example, as part of a corporate reconstruction or to close down non-operating or redundant entities). 

An overview of the two key procedures to effect the dissolution of a solvent Australian company, being Members’ Voluntary Liquidation and Deregistration, is set out below. 

In brief

Even with the fiscal stimulus and other measures taken by the Federal and State governments in Australia, corporate insolvencies are likely to increase in coming months.

Under Australia's insolvency regimes, a distressed company may be subject to voluntary administration, creditor's voluntary winding up or court ordered winding up (collectively, an external administration). Each of these processes raises different issues for the commencement and continuation of court and arbitration proceedings.

In summary

In our previous alert we discussed how Justice Markovic in the Federal Court of Australia had granted the administrators of retailer Colette Group relief from personal liability for rent in respect of 93 stores.  

Faced with constantly evolving circumstances in these challenging times, officers and directors should not lose sight of what is arguably their most important corporate role–that is, as a fiduciary. The question, particularly as a corporation’s financial situation changes and restructuring is being considered, is: Who is that fiduciary duty owed to? Unfortunately, the answer depends on whether the corporation is insolvent or near insolvent, which is why being vigilant now will help avoid scrutiny by creditors later.

The Australian Federal Court has made orders relieving the administrators of retailer Colette from personal liability for rent in response to the COVID-19 crisis and the current uncertainty in respect of government policy about rent relief for tenants: see

What you need to know

When Financial Stress Turns to Distress–Restructuring Tools to Avoid Disaster

Parts 1 and 2: Chapter 11 Checklist and What Else Is in the Toolbox

Amendments to the Corporations Act 2001 (Cth) (Corporations Act) to implement the measures announced by Treasurer Josh Frydenberg on Sunday, 22 March 2020 to provide temporary relief for financially distressed businesses due to COVID-19 have now come into effect.

The Coronavirus Economic Response Package Omnibus Act 2020 (Cth) (CERPO Act) amendments were passed by the Parliament on 2 March 2020. They will apply for a 6 month period, but may be extended or have impacts beyond that timeframe.