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.

On average, the Supreme Court hears a single bankruptcy case each term. But during the October 2022 term, the Supreme Court issued a remarkable four decisions in bankruptcy cases. These decisions, which are summarized below, address appellate issues relating to sale orders, the discharge of claims obtained by fraud, and sovereign immunity issues in two different contexts.

I. Section 363(m) of the Bankruptcy Code is not a jurisdictional provision that precludes appellate review of asset sale orders.

Analizamos las principales novedades en materia de insolvencia internacional contenidas en el Proyecto de Ley de reforma del Texto Refundido de la Ley Concursal. Sin perjuicio del texto final que resulte aprobado tras la correspondiente tramitación parlamentaria, el capítulo dedicado a la insolvencia internacional es uno de los que menos enmiendas han recibido y, por tanto, donde previsiblemente se producirán menos cambios.

We analyze the main novelties of the international insolvency regulation introduced in the Insolvency Law Reform Bill. Although the final wording will be approved after its passage through parliament, the chapter on international insolvency is among those that received the fewest amendments and therefore is expected to see the fewest changes. We therefore predict that all or a large part of the comments made below will also be applicable to the wording of the Insolvency Law that will be approved at the end of the process.

The European Court has issued a sentence of special relevance for the operation and effectiveness of the “pre-pack” insolvency procedures. Specifically, it clarifies the requirements that must be met to respect the rights of workers in the event of business transfers.

El órgano judicial europeo ha dictado una sentencia de especial relevancia para el funcionamiento y efectividad de los 'pre-packs' concursales. En concreto, aclara los requisitos que se deben cumplir para respetar los derechos de los trabajadores en caso de transmisión de empresas.

Businesses in a wide range of industries may now be forced to consider bankruptcy given the unprecedented economic challenges caused by the COVID-19 pandemic. This advisory is designed to provide a high-level view of issues to be considered by human resources when considering filing for Chapter 11 bankruptcy. Please note that this advisory focuses specifically on a Chapter 11 bankruptcy (pursuant to which a business will be reorganized) rather than Chapter 7 bankruptcy (pursuant to which a business will be liquidated).

Earlier this month, the Supreme Court announced that it will review the scope of Bankruptcy Code section 546(e)’s safe harbor provision. Section 546(e) protects from avoidance those transfers that are made “by or to (or for the benefit of)” a financial institution, except where there is actual fraud. The safe harbor is intended to ensure the stability of the securities market in the event of corporate restructurings.

In a recent decision (“Energy Future Holdings”) poised to have wide-reaching implications, the Third Circuit Court of Appeals reversed the decisions of the Bankruptcy and the District Courts to hold that a debtor cannot use a voluntary Chapter 11 bankruptcy filing to escape liability for a “make-whole” premium if express contractual language requires such payment when the borrower makes an optional redemption prior to a date certain.