In a March 29, 2016 decision,1 the United States Court of Appeals for the Second Circuit (the "Court of Appeals") held that creditors are preempted from asserting state law constructive fraudulent conveyance claims by virtue of the Bankruptcy Code's "safe harbors" that, among other things, exempt transfers made in connection with a contract for the purchase, sale or loan of a security (here, in the context of a leveraged buyout ("LBO")), from being clawed back into the bankruptcy estate for distribution to creditors.
In Murphy -v- O'Flynn & anor [2016] IEHC 197 a liquidator sought an order from the Court restricting William and Deirdre O’Flynn from acting as directors pursuant to Section 150 of the Companies Act 1990.
Applicable Law
In Delaney v AIB [2016] IECA 5, Court of Appeal, Peart J, 28 January 2016 the Court of Appeal held that a bank had no duty of care to advise customers on the wisdom of a commercial transaction.
Facts
In McCann -v- Halpin & anor [2016] IESC 11, the receiver applied to the High Court for directions pursuant to Section 316(1) of the Companies Act 1963, in relation to the exercise of his powers as receiver over the property and assets of Elektron and Crossplan (the Companies). The appeal before the Supreme Court dealt with one issue - whether the receiver was validly appointed.
Facts
In Farrell & Kelly v Petrosyan & Ors (linked to McLoughlin & anor v ACC Loan Management Ltd), High Court, O'Connor J, 2 March 2016 the High Court considered an application for possession on behalf of receivers appointed by ACC Loan Management Limited (ACC). One of the issues before the court was whether the receivers had authority to act in the proceedings in view of their deeds of appointment by ACC.
On January 4, 2016, the United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”) deviated from SDNY precedent and held that, despite the absence of clear Congressional intent, the avoidance powers provided for under Section 548 of the Bankruptcy Code can be applied extraterritorially. As a result, a fraudulent transfer of property of a debtor’s estate that occurs outside of the United States can be recovered under Section 550 of the Bankruptcy Code.
Director of Corporate Enforcement -v- Walsh & ors [2016] IECA 2 concerned an appeal by the Director of Corporate Enforcement (the Director) against a decision of Barrett J declining to make a disqualification or restriction order against three directors.
In Cahill -v- O'Brien & anor [2015] IEHC 817, the Court considered an application for the restriction of two directors pursuant to Section 150 of the Companies Act, 1990 together with an application extending the time for the making of the application.
Facts
On December 14, 2015, the United States Court of Appeals for the Second Circuit held that claims arising from securities of a debtor’s affiliate must be subordinated to all claims or interests senior or equal to claims of the same type as the underlying securities in the bankruptcy proceeding.