Earth: how to ensure your customer’s insolvency leaves a sweet not a sour taste in the mouth and get paid in the event of insolvency

Absent a retention of title clause (or any other protective clause in a contract – see Part 1 in this series ), a creditor of an insolvent company has the following options.

在与向英国供货的国际公司合作的过程中，我们发现了一些常见问题。在上一篇文章中，我们研究了客户可能面临的破产程序类型。在“五行”系列第四篇文章中，我们围绕“火”元素来说明破产执业者在进入破产程序时拥有的重大权力：调查不当行为，并将资产收回统一偿还债权人。

火：破产执业者对债权人欺诈性交易的重大权力

破产执业者(不论是清算人或管理人)可以向法院申请撤销在公司进入破产程序前进行的特定交易。通过这种方式，可以收回资产或资金，统一向债权人偿付。下列情形属于“先前的”或“可审查”的交易：

1. 公司的资产或财产被低价出售；

2. 公司在进入破产程序前给予某债权人优先权，使其处于比其他债权人更有利的地位；

3. 公司订立了敲诈性信贷交易（交易条款有严重的敲诈性）；

4. 公司设立了无效浮动抵押，即为已发放的贷款或已提供的货物及服务的成本提供担保；

5. 公司订立的交易具有欺诈债权人的明确目的，即：使公司的资产脱离破产执业者和债权人的控制范围。

不同类型的可审查交易有不同的时间要求。例如，低价出售必须发生在公司进入破产程序前的两年内。

In our work with international companies supplying goods to the UK, we see the same issues arising regularly. In Part 3, we examined the types of insolvency process a customer may be subject to. In this fourth of five articles based on the five elements of the Wu Xing, we take the theme of Fire and explain the significant powers that arise for the insolvency practitioner on the entry into insolvency: to investigate propriety and recover assets to the central pool to pay creditors.

Background

Following various disputes as to the scope of the collateral given to secured creditors, the debtors and certain of their noteholders jointly proposed a chapter 11. The plan included a rights offering that the consenting noteholders agreed to backstop. These consenting noteholders were granted the right to purchase significant equity of the reorganized debtors at a discount and receive significant premiums for their agreement to backstop the rights offering and support the plan.

Merit Management

In Mission Products Holdings, Inc. v. Tempnology, LLC, the U.S. Supreme Court resolved a question that vexed the lower courts and resulted in a circuit split: does the rejection by a debtor-licensor of a trademark license agreement terminate the licensee’s rights under the rejected license?

It is a well-established principle of bankruptcy law that claims generally crystallize as of the bankruptcy petition date. Of course, section 506(b) of the bankruptcy code allows over-secured, secured creditors to recover post-petition interest and costs, including reasonable legal fees, if their documentation provides them with the right to recover these costs. But what about unsecured creditors – are post-petition legal fees incurred by an unsecured creditor whose contract with the debtor provides for reimbursement of legal fees allowed or not?

Bankruptcy Rule 2004 allows the examination of any entity with respect to various topics, including conduct and financial condition of the debtor and any matter that may affect the administration of the estate. Does a subordination agreement that is silent on the use of Rule 2004 prevent the subordinated creditor from taking a Rule 2004 examination of the senior creditor? Yes, says an Illinois bankruptcy court.

Two United States Bankruptcy Judges for the Southern District of New York recently issued a joint opinion addressing common issues raised by motions to dismiss in two separate adversary proceedings – one pending before Judge Bernstein and the other before Judge Glenn (the “Adversary Proceedings”). The Adversary Proceedings were filed by the debtors in two chapter 11 cases, each involving an Anguillan offshore bank – National Bank of Anguilla (Private Banking Trust) Ltd. and Caribbean Commercial Investment Bank Ltd. (the “Debtor Banks”).

Manley Toys Limited once claimed to be the seventh largest toy company in the world. Due to ongoing litigation and declining sales, it entered into a voluntary liquidation in Hong Kong. On March 22, 2016, the debtor’s appointed liquidators and foreign representatives filed a motion for recognition under chapter 15 of the Bankruptcy Code. The motion was opposed by ASI Inc., f/k/a Aviva Sports, Inc. (“Aviva”) and Toys “R” Us, Inc. (“TRU”).