A debtor's non-exempt assets (and even the debtor's entire business) are commonly sold during the course of a bankruptcy case by the trustee or a chapter 11 debtor-in-possession ("DIP") as a means of augmenting the bankruptcy estate for the benefit of stakeholders or to fund distributions under, or implement, a chapter 9, 11, 12, or 13 plan.
In most cases seeking recognition of a foreign bankruptcy proceeding in the United States under chapter 15 of the Bankruptcy Code, the foreign debtor's "foreign representative" has been appointed by the foreign court or administrative body overseeing the debtor's bankruptcy case.
The Bankruptcy Code does not explicitly authorize the equitable remedy of "substantive consolidation"—i.e., treating the assets and liabilities of two or more related entities as if they belonged to a single, consolidated bankruptcy estate. However, it is well recognized that a bankruptcy court has the authority to order such relief under appropriate circumstances in the exercise of its broad equitable powers when each of the original entities are already debtors subject to the court's jurisdiction.
Recent headlines have starkly illuminated the headwinds facing health care providers struggling to recover from a host of financial pressures. Many providers have resorted to filing for bankruptcy protection as a way, among other things, to right-size their balance sheets or effect a sale of their assets or businesses.
Bankruptcy and appellate courts disagree over the standard that should apply to a request for payment of a break-up fee or expense reimbursement to the losing bidder in a sale of assets outside the ordinary course of the debtor's business. Some apply a "business judgment" standard, while others require that the proposed payments satisfy the more rigorous standard applied to administrative expense claims.
Section 1124(2) of the Bankruptcy Code gives chapter 11 debtors a valuable tool for use in situations where long-term prepetition debt carries a significantly lower interest rate than the rates available at the time of emergence from bankruptcy. Under this section, in a chapter 11 plan, the debtor can "cure" any defaults under the relevant agreement and "reinstate" the maturity date and other terms of the original agreement, thus enabling the debtor to "lock in" a favorable interest rate in a prepetition loan agreement upon bankruptcy emergence.
In Short
The Background: On November 15, 2023, the Temporary Fast-Track Liquidation Transparency Act (Tijdelijke Wet Transparantie Turboliquidatie) (the "Act") came into force in the Netherlands, temporarily changing certain statutory provisions in the Dutch Civil Code (Burgerlijk Wetboek), the Dutch Bankruptcy Act (Faillissementswet), and the Dutch Economic Offenses Act (Wet op de economische delicten).
A "double-dip" structure is considered a way to allow some creditors to have multiple claims against key obligors arising out of the same underlying transactions. These additional claims could improve their position relative to other creditors in a bankruptcy or liquidation.
In Short:
The Situation: After the nationalization of the Dutch SNS banking and insurance group, the Dutch Minister of Finance offered zero compensation to expropriated bondholders.
The Result: Ten years after the nationalization, the Dutch Supreme Court confirmed compensation awards totaling approximately €1 billion including accrued interest.
Looking Ahead: The SNS case provides some interesting lessons on where those seeking compensation in the context of bank bailouts and resolutions may head.
In Mann v. LSQ Funding Group, L.C., 71 F.4th 640 (7th Cir. 2023), reh'g denied, 2023 WL 4684702 (7th Cir. July 21, 2023), the U.S.