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Fifth Circuit Rules on the "Solvent-Debtor Exception" and Make-Whole Premiums

On October 14, 2022, the U.S. Court of Appeals for the Fifth Circuit issued a long-awaited ruling on whether Ultra Petroleum Corp.

USA, Company & Commercial, Insolvency & Restructuring, Litigation, Jones Day, US Congress, United States bankruptcy court, Fifth Circuit, U.S. Court of Appeals
Fifth Circuit Rules on the "Solvent-Debtor Exception" and Make-Whole Premiums

In Short

The Situation: Courts have disagreed over whether a make-whole premium triggered by a borrower's bankruptcy filing must be disallowed as unmatured interest. They have also disputed whether the "solvent-debtor exception" requiring the payment of postpetition interest to unimpaired unsecured creditors of a solvent debtor survived the enactment of the Bankruptcy Code. Finally, courts have split on what rate of postpetition interest unimpaired unsecured creditors of a solvent debtor are entitled to receive.

USA, Insolvency & Restructuring, Litigation, Jones Day, US Congress, Fifth Circuit
Divided Ninth Circuit Rules That Unimpaired Unsecured Creditors of a Solvent Debtor May Be Entitled to Post-Petition Interest at Contract or State Default Rates

In Short

The Situation: Bankruptcy courts have split on what rate of post-petition interest unimpaired creditors of a solvent debtor are entitled to receive. Bankruptcy courts have variously ruled that such creditors were entitled to the contractual rate of interest, interest at the federal judgment rate (about the rate on a one-year Treasury bill) as of the bankruptcy petition date, or an equitable rate. Another possibility is that no interest is payable at all.

USA, Insolvency & Restructuring, Litigation, Jones Day, Supreme Court of the United States, Ninth Circuit
Canada’s Top Court Provides Crucial Guidance on the Conduct of Insolvency Proceedings

The Supreme Court of Canada delivered its reasons today in 9354-9186 Québec inc. v Callidus Capital Corp., 2020 SCC 10, after having unanimously allowed the appeals from the bench on January 9, 2020. Davies represented the principal – and successful – appellants in this matter.1

In its reasons, which were delivered by Chief Justice Wagner and Justice Moldaver, the Supreme Court laid out key principles for the conduct of insolvency proceedings (including proceedings under the Companies' Creditors Arrangement Act [CCAA]):

Canada, Company & Commercial, Insolvency & Restructuring, Litigation, Davies Ward Phillips & Vineberg LLP, Supreme Court of Canada
Canada’s Top Court Releases Precedent-Setting Decision on Litigation Funding and a Court’s Discretion in Restructuring Process

The Supreme Court of Canada’s decision in 9354-9186 Québec Inc. v Callidus Capital Corporation unanimously overturned a unanimous decision of the Québec Court of Appeal. The Supreme Court’s decision, released on January 23, 2020, was issued from the bench with reasons to follow.

Canada, Insolvency & Restructuring, Litigation, Davies Ward Phillips & Vineberg LLP, Supreme Court of Canada
Le plus haut tribunal du Canada rend une décision qui fera jurisprudence concernant le financement des litiges et le pouvoir discrétionnaire du tribunal à l’égard du processus de restructuration

Dans une décision unanime rendue séance tenante le 23 janvier 2020 dans l’affaire 9354-9186 Québec Inc. c. Callidus Capital Corporation, la Cour suprême du Canada a infirmé une décision unanime de la Cour d’appel du Québec. Les motifs de la Cour sont à venir.

Canada, Company & Commercial, Insolvency & Restructuring, Litigation, Davies Ward Phillips & Vineberg LLP