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。

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.