On May 21, 2015, the United States Court of Appeals for the Third Circuit affirmed a decision of the United States Bankruptcy Court for the District of Delaware, which had approved the structured dismissal of the Chapter 11 cases of Jevic Holding Corp., et al. The Court of Appeals first held that structured dismissals are not prohibited by the Bankruptcy Code, and then upheld the structured dismissal in the Jevic case, despite the fact that the settlement embodied in the structured dismissal order deviated from the Bankruptcy Code’s priority scheme.
In a memorandum decision dated May 4, 2015, Judge Vincent L. Briccetti of the United States District Court for the Southern District of New York affirmed the September 2014 decision of Judge Robert D. Drain of the United States Bankruptcy Court for the Southern District of New York, confirming the joint plans of reorganization (the “Plan”) in the Chapter 11 cases of MPM Silicones LLC and its affiliates (“Momentive”). Appeals were taken on three separate parts of Judge Drain’s confirmation decision, each of which ultimately was affirmed by the district court:
Dealing a major blow to the trustee’s efforts to recover fraudulent transfers on behalf of the bankruptcy estate of the company run by Bernard Madoff, Judge Jed S. Rakoff of the United States District Court for the Southern District of New York held in SIPC v. Bernard L. Madoff Investment Securities LLC1 that the Bankruptcy Code cannot be used to recover fraudulent transfers of funds that occur entirely outside the United States.
In the recent decision of Kenneth Krys and Joanna Lau (as Joint Liquidators of Fairfield Sentry Limited in Liquidation) and Stichting Shell Pension Funds, HCVAP 2011/036, the ECSC Court of Appeal provided some clarification of its decision in Westford Special Situations Fund Limited v Barfield Nominees Limited et al HCVAP No. 14 of 2010.
Redemption of shares and consideration
Discounted valuation
Restoration
Finality of foreign judgments
Redemption of shares and consideration
As we reported in a client mailshot earlier this week, the Eastern Caribbean Supreme Court has made important amendment to its rules. The amendments are immediately in force and deal with a number of areas including appeal procedure, costs capping and costs orders.
In an application to wind up a BVI company the BVI Court re-stated the rules on when a foreign judgment creates an issue estoppel. Following The Sennar [1985] 1 WLR 490 the Court found that there would be an estoppel where a foreign judgment is (1) of a court of competent jurisdiction; (2) is final and conclusive; and (3) on the merits.
In a decision of interest in a number of jurisdictions where these types of claims have been made, the BVI Commercial Court handed down judgment today in the claim brought by the liquidators of Fairfield Sentry Limited, a BVI fund which invested in Bernard Madoff’s investment vehicle.
Trial on preliminary issues
Yesterday, the ECSC Court of Appeal set aside the winding up order made in the case of Westford Special Situations Fund Ltd. v. Barfield Nominees Limited and another, and dismissed the Joint Liquidators appointed over the fund.
Westford was put into liquidation earlier this year by shareholders whose application was based on their entitlement to unpaid redemption proceeds. At first instance the application was allowed and Joint Liquidators were appointed over the Fund on two grounds:-