It is not uncommon for contractors, in several industry sectors, to contract with a special purpose vehicle (SPV), whose day-to-day management is effectively controlled by a parent company, and the SPV has with little to no assets beyond cash flow provided by its parent. In this article we look at what a claimant could do outside of the traditional insolvency process in circumstances where the SPV goes into a form of external administration such as administration or liquidation and there are no assets available to the external administrators.
In the recent decision of Re PBS Building (Qld) Pty Ltd [2024] QSC 108, the Supreme Court of Queensland considered for the first time the operation of the State’s new project and retention trust account regime in the context of an insolvency. The decision provides useful guidance to insolvency practitioners and subcontractors as to their rights in relation to trust accounts established by an insolvent head contractor.
山东胜通集团股份有限公司（以下简称“胜通集团”）债券信息披露违法案是证监会2021年证监稽查20起典型违法案例之一，相关中介机构均被行政处罚，备受资本市场关注。日前，青岛市中级人民法院（下称“青岛中院”）对“胜通债”虚假陈述诉讼案作出一审判决。
本案系北京金融法院“大连机床”判例后债券虚假陈述诉讼领域的又一经典判例，一审判决诸多亮点值得点赞：（1）新《证券法》实施后全国法院首例认定债券虚假陈述造成的债券投资损失应为投资差额损失而非债券票面本息；（2）全国法院首例在债券虚假陈述案件中剔除系统风险和非系统风险所致债券投资损失；（3）充分考察债券价格、交易量变化，突破性地认定发行人“澄清公告”发布日为揭露日；（4）创新性地认定案涉债券市场并非有效市场，应以破产清偿金额来确定债券基准价。
该案判决对债券虚假陈述投资损失的认定，标志着我国债券虚假陈述损失的司法认定思路已开始理性回归“损害填平”的侵权责任本质。此外，该案判决对债券虚假陈述揭露日和基准价方面的认定，进一步丰富了人民法院审理债券虚假陈述专业性问题的实践，积累了宝贵经验，具有相当的前沿性和示范性。
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 High Court of Australia’s decision in Wells Fargo Trust Company, National Association (as Owner Trustee) & Anor v VB Leaseco Pty Ltd (Administrators Appointed) & Ors (the “Willis” case).
On Wednesday, 16 March 2022, the High Court of Australia handed down its decision in the Willis case.
On the 2 August 2021 Treasury released a consultation paper titled ‘Helping Companies Restructure by Improving Schemes of Arrangement. The consultation is aimed at reforming Australia’s scheme of arrangement procedure.
Background
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.