Two recent cases out of the Third Circuit and the Southern District of New York highlight some of the developing formulas US courts are using when engaging with foreign debtors. In a case out of the Third Circuit, Vertivv. Wayne Burt, the court expanded on factors to be considered when deciding whether international comity requires the dismissal of US civil claims that impact foreign insolvency proceedings.

When a majority of a company’s board approves a tender offer in good faith, can it still be avoided as an actually fraudulent transfer? Yes, says the Delaware Bankruptcy Court, holding that the fraudulent intent of a corporation’s CEO who was a board member and exercised control over the board can be imputed to the corporation, even if he was the sole actor with fraudulent intent.

Background

前言

《中华人民共和国企业破产法》（“《破产法》”）在公平清理债权债务、维护社会经济秩序等方面起到了重要的作用。但《破产法》下限制表决权的条款也因缺乏统一具体的适用标准——尤其是庭外程序表决效力的延伸、职工债权人和出资人表决权规范缺失等——而导致问题层出不穷，本文拟探其详并予建议。

一、破产表决权限制条款的适用问题

（一）禁反言规则在破产程序中的适用

《全国法院民商事审判工作会议纪要》（以下简称“《九民纪要》”）第一百一十五条认可了庭外重组协议在破产重整中的效力，但是在司法实践中仍然存在诸多问题。

第一，《九民纪要》第一百一十五条明确的是庭外重组与庭内重整程序的衔接。从文义解释角度，该条仅能适用于最终转化为破产重整的庭外重组程序。而庭内企业拯救程序不仅包括破产重整程序，同时也包括破产和解程序。庭外债务重组协议的效力能否延伸到破产和解程序中仍有待进一步明确。

Recently, in In re Moon Group Inc., a bankruptcy court said no, but the district court, which has agreed to review the decision on an interlocutory appeal, seems far less sure.

Yes, says the Delaware Bankruptcy Court in the case of CII Parent, Inc., cementing the advice routinely given by bankruptcy counsel to borrowers in default. We always counsel borrower clients in default of the risk associated with lenders taking unilateral actions pre-filing, stripping debtors of valuable options and assets. Thus, we normally recommend to always obtain a forbearance and undertake the preparations required to file a bankruptcy petition immediately upon forbearance termination, although whether or not to file depends on variety of factors that should be considered.

The Second Circuit recently held that a non-party to an assumed executory contract is not entitled to a cure payment (although it may be so entitled if is a third-party beneficiary of the contract). The result would have seemed obvious to bankruptcy practitioners. So, what in the world made the party pursuing payment take this to the Second Circuit? Well, surprisingly, as the Second Circuit decision shows, the answer is not found in the plain text of the Bankruptcy Code. And while it was argued prior to the Supreme Court’s ruling in Bartenwerfer v. Buckley, No. 21-908, 598 U.S.

A mortgage loan repurchase facility (more casually referred to as a "repo") is a financing structure commonly utilized to finance mortgage loans. These facilities are utilized by both residential and commercial mortgage loan originators and aggregators to finance mortgage loans that they originate or acquire. The structure is favored by liquidity providers in the mortgage loan finance arena due to its preferential "safe harbor" treatment under the United States Bankruptcy Code (the "Bankruptcy Code"), as further described below.

Lenders often attempt to limit what a borrower can do outside the ordinary course of business by negotiating contractual protections. Some of these provisions are designed to make the borrowers bankruptcy remote by, for example, requiring the borrower’s Board to include an independent director whose consent is required for a bankruptcy filing. Others, as was the case we discuss here, however, go further by including contractual rights that limit a borrower’s ability to file for bankruptcy without the lender’s consent.

On Sunday, March 12th, the Treasury Department, the FDIC, and the Board of Governors of the Federal Reserve System (Fed) (the Agencies) announced that the New York Department of Financial Services had appointed the FDIC as receiver for Signature Bank, which was closed on March 11th.  Subsequently, the FDIC announced that it had transferred substantially all of the assets and all of the deposits of Signature Bank to the newly created Signature Bridge Bank, N.A.  Early on March 13th, the FDIC announced a similar transfer of assets and deposits to Silicon Valley Bank, N.A., another n

In the Chapter 15 case of Three Arrows Capital, Ltd., the Bankruptcy Court for the Southern District of New York recently held that Rule 45 of the Federal Rule of Civil Procedure (“Rule 45”) authorizes service of subpoenas to U.S. nationals or residents who are in a foreign country through alternative means to personal service, including via email and Twitter.