The High Court has allowed an application for an order to enable access to a bankrupt’s pension to satisfy debts arising from fraud. Prior to the bankruptcy, judgment was obtained against him for £3.2m plus costs.
In a November 17, 2016 ruling likely to impact ongoing debt restructurings, pending bankruptcy proceedings and negotiations of new debt issuances, the Third Circuit recently overturned refusals by both the Delaware bankruptcy court and district court to enforce “make-whole” payments from Energy Futures Holding Company LLC and EFIH Finance Inc. (collectively, “EFIH”) to rule that the relevant indenture provisions supported the payments. The case was remanded to the bankruptcy court for further proceedings.
Pension Protection Fund: valuation assumptions
The PPF has consulted on changing the assumptions used for section 143 valuations (used for schemes in assessment periods) and section 179 valuations (used when setting a scheme's risk-based levy). The PPF expects that the proposed changes would increase section 143 and section 179 liabilities by just under 4% and would potentially lead to a small increase in the number of schemes transferring to the PPF.
Pension Protection Fund: insolvency risk provider
HIGHLIGHTS
The credit crunch caused problems for businesses at the same time as the value of pension scheme assets plunged, adding ballooning defined benefit pension deficits to the woes of struggling companies.
Company insolvencies, and attempts at restructuring to avoid insolvencies, can have a significant impact on the pension schemes sponsored by those companies. The pensions issues can also act as a significant obstacle to restructuring.
On May 15, 2012, the United States Court of Appeals for the Eleventh Circuit issued a decision[1] in the much-watched litigation involving the residential construction company, TOUSA, Inc. ("TOUSA"). The decision reversed the prior decision of the District Court, [2] reinstating the ruling of the Bankruptcy Court.[3]
Background
Indentures often contain make-whole premiums payable upon early redemption of the debt, and term B loan agreements often include "soft call" protection in the form of prepayment premiums during the early life of the loan. If the debt issuer becomes subject to a chapter 11 proceeding after the debt issuance, the question then arises as to how this payment obligation is to be treated: Does the make-whole or prepayment premium constitute unmatured interest due as a result of the debt acceleration, which would be disallowed, or is it liquidated damages?
Proposals issued October 2010
Confirmation given 31 January 2011
Policy statement issued May 2011
Draft guidance on the bespoke measurement of investment risk issued May 2011. Consultation ends on 24 June 2011
Consultation on the 2012/13 levy determination expected in autumn 2011
The PPF has confirmed its intention to implement a new levy framework from 2012/13. Key features of the framework confirmed in the policy statement include: