Two recent Supreme Court of Canada decisions demonstrate that the corporate attribution doctrine is not a one-size-fits-all approach.
Court approval of a sale process in receivership or Bankruptcy and Insolvency Act (“BIA”) proposal proceedings is generally a procedural order and objectors do not have an appeal as of right; they must seek leave and meet a high test in order obtain it. However, in Peakhill Capital Inc. v.
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.
The Privy Council has handed down judgment in two appeals (ETJL v Halabi; ITGL v Fort Trustees [2022] UKPC 36) concerning the nature and scope of the right of a trustee to recover from or be indemnified out of trust assets in respect of liabilities and other expenditure properly incurred by the trustee. A seven-member Board was convened because the Privy Council was asked to reconsider part of its decision in Investec Trust (Guernsey) Ltd v Glenalla Properties Ltd [2019] AC 271.
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.
Last Friday, the Court of Appeal handed down judgment in Al Jaber v Mitchell [2021] EWCA Civ 1190, a keenly awaited decision which considers with the application of the doctrine of immunity from suit to statements given by a former director during an examination under section 236 Insolvency Act 1986.
The High Court has had to grapple with the application of witness immunity and the unique examination process under section 236 Insolvency Act 1986. Witness immunity (or immunity from suit) provides that no witness, party, counsel or judge may be liable for words spoken or evidence given in court proceedings; it is an absolute immunity from any civil proceedings based on such conduct.
The High Court has had to grapple with the application of witness immunity and the unique examination process under section 236 Insolvency Act 1986. Witness immunity (or immunity from suit) provides that no witness, party, counsel or judge may be liable for words spoken or evidence given in court proceedings; it is an absolute immunity from any civil proceedings based on such conduct.
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.