本文主要讨论公司型基金、合伙型基金自行清算的主要流程，并就基金自行清算出现僵局等情形时，如何申请法院启动基金强制清算程序的主要问题作初步探讨。

基金清算适用的法律

对于公司型基金的清算，其主要适用《公司法》以及《最高人民法院关于适用＜中华人民共和国公司法＞若干问题的规定（二）》（下称“《公司法司法解释二》”）《关于审理公司强制清算案件工作座谈会纪要》（下称“《强制清算纪要》”）以及部分高院出台的相关审判指导。

对于合伙型基金的清算，除适用《合伙企业法》外，可参照公司法律的有关规定。对此，《民法总则》第一百零八条规定，“非法人组织除适用本章规定外，参照适用本编第三章第一节的有关规定”；第三编第一节对法人清算作出了相关规定，其中第七十一条规定，“法人的清算程序和清算组职权，依照有关法律的规定；没有规定的，参照适用公司法律的有关规定”。例如，北京一中院在（2020）京01清申27号《民事裁定书》中基于上述规定，认定合伙型基金的清算应当参照《公司法》的相关规定进行。

除前述规定外，中国证监会、中基协的相关规定，以及其他行业自治组织的相关规定，亦可作为基金清算的依据。

In Shameeka Ien v. TransCare Corp., et al. (In re TransCareCorp.), Case No. 16-10407, Adv. P. No. 16-01033 (Bankr. S.D.N.Y. May 7, 2020) [D.I. 157], the Bankruptcy Court for the Southern District of New York recently refused to dismiss WARN Act claims against Patriarch Partners, LLC, private equity firm (“PE Firm“), and its owner, Lynn Tilton (“PE Owner“), resulting from the staggered chapter 7 bankruptcies of several portfolio companies, TransCare Corporation and its affiliates (collectively, the “Debtors“).

Joining three other bankruptcy courts, Judge Thuma of the District of New Mexico recently held that the rules issued by the Small Business Administration (“SBA“) that restrict bankrupt entities from participating in the Paycheck Protection Program (“PPP“) violated the Coronavirus Aid, Relief, and Economic Security Act, H.R. 748, P.L. 115-136 (the “CARES Act”), as well as section 525(a) of the Bankruptcy Code.

The Southern District of New York recently reminded us in In re Firestar Diamond, Inc., et al., Case No. 18-10509 (Bankr. S.D.N.Y. April 22, 2019) (SHL) [Dkt. No. 1482] that equitable principles in bankruptcy often do not match those outside of bankruptcy. Indeed, bankruptcy decisions often place emphasis on equality of treatment amongst all creditors and are less concerned with inequities to individual creditors.

Introduction

In Wells Fargo Bank, N.A., f/b/o Jerome Guyant, IRA v. Highland Construction Management Services, L.P. et al., Nos. 18-2450-52 (4th Cir. March 17, 2020), the Fourth Circuit Court of Appeals recently upheld that a borrower’s indirect economic interests in a limited liability company (LLC) were not assigned to a lender under a conveyance in a security agreement assigning mere membership interests, pursuant to Virginia state law.

Facts

Setoff is a right that allows a creditor to offset a prepetition debt owed to a debtor with its prepetition claim against the debtor.  See In re Luongo, 259 F.3d 323, 334 (5th Cir.

Setoff is a right that allows a creditor to offset a prepetition debt owed to a debtor with its prepetition claim against the debtor. See In re Luongo, 259 F.3d 323, 334 (5th Cir. 2001). This remedy is aimed at preventing the inequitable and inefficient result that occurs when a creditor is forced to pay a 100% of its prepetition debt owed to a debtor, without resolving its prepetition claim. In such circumstances, the creditor is often forced to later prosecute its unresolved claim against the debtor and is commonly only awarded a fraction of the value of its claim.

Bankruptcy and class actions each establish elaborate procedures and provide a convenient forum to resolve numerous claims against one or more defendants, in an efficient manner. However, while a class action focuses on providing adequate representation to claimants with similar claims, bankruptcy focuses on enabling an insolvent company to reorganize. The two goals do not necessarily blend well in every circumstance.

The Small Business Reorganization Act of 2019 (“SBRA”) became effective on February 19, 2020, after being enacted by Congress at blazing speed.  Indeed, the legislation was first introduced into the House of Representatives on June 18, 2019, was received by the Senate on July 24, 2019 and was signed by the President on August 23, 2019.  The SBRA is intended to help small businesses restructure their debts in bankruptcy more effectively.