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2024 Notable Cases (Part 5) - Supreme Court Clarifies Bankruptcy Treatment of Securities Penalties and Disgorgement Orders
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On July 31, 2024, the Supreme Court of Canada provided clarity regarding the treatment of administrative monetary penalties and disgorgement orders resulting from securities violations in Poonian v. British Columbia (Securities Commission).

Canada, British Columbia, Capital Markets, Insolvency & Restructuring, Litigation, Baker McKenzie, Supreme Court of Canada
2024 Notable Cases (Part 1) - Supreme Court clarifies Corporate Attribution Doctrine
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As we enter 2025, we look back on five important decisions that made the news in 2024. Here is the the first case.

Canada, Company & Commercial, Insolvency & Restructuring, Litigation, Baker McKenzie, Supreme Court of the United States, Supreme Court of Canada
Creditors seeking enforcement of claims to a Mareva defendant must come with clean hands

Mareva orders, also known as freezing orders, may be granted when there is a risk that a defendant might move its assets out of reach of the court’s jurisdiction. Mareva can orders freeze assets owned directly or indirectly by the defendants. Oftentimes a defendant subject to a freezing order has other creditors seeking repayment. Can a creditor enforce its claim against the frozen assets? Yes, but the creditor must come to the court with clean hands and should not make loans to the defendant if it has notice of the order.

Canada, Ontario, Insolvency & Restructuring, Litigation, Baker McKenzie, Due diligence
Occupational Pensions: Federal Labour Court rules on applicable discount rate regarding the determination of the amount of claims asserted by the German Pension Insolvency Protection Association (PSV)

The Federal Labour Court (Bundesarbeitsgericht – BAG) has ruled on 18 May 2021 (docket number 3 AZR 317/20) that in the case of the PSV’s assertion of claims against the insolvency administrator of an insolvent company, it is not the balance sheet interest rate used for the calculation of the pension provisions that is applicable, but the standard statutory interest rate according to section 246 German Civil Code (BGB). Only this interest rate is decisive for the calculation of the amount of claims.

Facts / Background:

Germany, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, DLA Piper
Occupational Pensions: Federal Labour Court confirms its established ruling on limited liability in case of acquiring a company out of insolvency

By judgment of 26 January 2021 (docket number: 3 AZR 878/16, 3 AZR 878/17) the Federal Labour Court (Bundesarbeitsgericht – BAG) has ruled that the acquirer of an insolvent company is only liable for vested entitlements and claims to occupational pension that had been earned after the opening of insolvency proceedings. He is not liable for the pension based on periods before, even if the German Insolvency Protection Fund (PSV) does not fully cover this part of the pension.

Facts / Background:

Germany, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, DLA Piper
When should a fraudulent conveyance action be brought?

In 2014, we reported on the Ontario Superior Court of Justice’s decision in Indcondo Building Corporation v. Sloan (“Indcondo“), which strengthened the position of plaintiffs seeking to set aside fraudulent conveyances in Ontario. In the Indcondo case, Mr.

Canada, Ontario, Insolvency & Restructuring, Litigation, Baker McKenzie, Fraud, Ontario Superior Court of Justice
The evolution of fraudulent conveyance – Indcondo v. Sloan

On July 31, 2014, the Honourable Mr. Justice Penny of the Ontario Superior Court of Justice ruled in favour of the plaintiff in Indcondo Building Corporation v. Sloan (S.C.J.).

Canada, Ontario, Insolvency & Restructuring, Litigation, Baker McKenzie