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Among the many financial innovations that came out of the COVID era, non-pro rata uptier transactions as a liability management exercise (“LMEs”) are among the more controversial. While lawsuits challenging non-pro rata uptier transactions are making their way through the courts, two important decisions were recently issued by the Court of Appeals for the Fifth Circuit and the New York Appellate Division.

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。

Over the past year, the Covid-19 pandemic upended many industries. While the construction industry has largely been able to operate throughout the pandemic, albeit with increased and ever-changing restrictions on jobsites, one consequence of these disruptions may be an increase in construction-related bankruptcy filings. Already in 2021, there have been over 70 construction-related bankruptcy filings across the country. For many property owners and real estate developers, these filings create a nightmare scenario where work may slow or even stop entirely.

On December 1, 2020, certain amendments to the Federal Rules of Bankruptcy Procedure take effect. The amendments largely modify rules governing bankruptcy appeals, but also impact Rules 2002 and 2004. The changes are as follows:

 

Over the summer, we wrote about why health care companies may want to consider buying assets out of bankruptcy, taking advantage of the Bankruptcy Code Section 363 sale process (a “363 Sale”). We are back with our second post, to provide more detail to the process and discuss some pros and cons of 363 Sales.

This two-part blog series discusses why buyers looking to make strategic purchases in the health care industry might want to take advantage of the Bankruptcy Code Section 363 sale process (363 Sale) and the pros and cons of buying assets out of bankruptcy through a 363 Sale.

As the COVID-19 pandemic continues to disrupt businesses and markets, and companies begin to look to bankruptcy courts for relief from the resulting liquidity and operational distress, the issue of creditor and shareholder “blocking rights” seems likely to become an important topic as parties attempt to protect their investments.

In a recent decision addressing valuation issues, the First Circuit has issued an important reminder – and warning – to creditors seeking to establish a secured claim in settlement proceeds based on a security interest in the settled claim. In short, the key lesson for would-be secured creditors is this – the value of a claim is not equal to the value of damages!

On August 23, 2019, President Trump signed into law the “Small Business Reorganization Act of 2019.” The primary effect of the “SBRA” is the creation of a subchapter to Chapter 11 for small business debtors, i.e. those with no more than $2,725,625 in secured and unsecured debts combined, to address the unique issues faced by those companies in the bankruptcy process.

This past May, in a highly-anticipated decision, the Supreme Court held in Mission Product Holdings, Inc. v. Tempnology, LLC that a debtor’s rejection of an executory contract under Section 365 of the Bankruptcy Code has the same effect as a breach of contract outside of bankruptcy.