In Ferreira da Silva e Brito and others v Estado portuges (C-160/14) the European Court of Justice (the ECJ) considered the meaning of a "transfer of a business" under the Acquired Rights Directive (the Directive) in relation to a situation whereby a majority shareholder assumed significant functions of a former subsidiary, which had been wound up.

Background

As reported in our briefing last week, the European Court of Justice has delivered its judgment in the case of Union of Shop, Distributive & Allied Workers (USDAW) and another v WW Realisation 1 Ltd (in liquidation) and others (C–80/14) in relation to long running claims brought by former employees of national retailers Woolworths and Ethel Austin, which arose out of the administration and closure of all of their retail stores. The ECJ had to consider the meaning of “establishment” in the legislation, which triggers an obligation to undertake collective consultation when an employe

Debt exchanges have long been utilized by distressed companies to address liquidity concerns and to take advantage of beneficial market conditions. A company saddled with burdensome debt obligations, for example, may seek to exchange existing notes for new notes with the same outstanding principal but with borrower-favorable terms, like delayed payment or extended maturation dates (a "Face Value Exchange"). Or the company might seek to exchange existing notes for new notes with a lower face amount, motivated by discounted trading values for the existing notes (a "Fair Value Exchange").

One of the primary fights underlying assumption of an unexpired lease or executory contract has long been over whether any debtor breaches under the agreement are “curable.” Before the 2005 amendments to the Bankruptcy Code, courts were split over whether historic nonmonetary breaches (such as a failure to maintain cash reserves or prescribed hours of operation) undermined a debtor’s ability to assume the lease or contract.