An appeals court ruled recently that chapter 5 avoidance actions are property of a debtor’s bankruptcy estate that can be sold in section 363 sales. In re Simply Essentials, LLC, No. 22-2011, 2023 U.S. App. LEXIS 21814 (8th Cir. Aug. 21, 2023). The decision follows similar rulings by other appeals courts.

The Cayman Islands Grand Court recently delivered its judgment in Re Shinsun Holdings (Group) Co., Ltd. FSD 192 of 2022 (DDJ) (21 April 2023) (unreported) (the “Shinsun Judgment”) in which the court determined the ultimate beneficial owner of bonds, held through Euroclear, did not have standing or authority to progress a winding up petition as a contingent creditor. In this article, we explore similar cases in other offshore and common law jurisdictions.

Shinsun Judgment and the Cayman Position

根据英国最高法院 2022 年底 Sequana¹ 的判决 ，新西兰最高法院在涉及 Mainzeal Property and Construction Limited²清算财产的长期案件中，对破产区公司董事所承担的义务问题进行了权衡及作出有力贡献。

当世界各地的董事们正努力应对各种宏观经济因素带来的困难和不确定时期时，这些决策为董事们应采取哪些保护自己及公司的方法提供了有用且及时的指导。

这可能意味着听取有关停止交易的建议，尝试签订重组支持协议或任命官员提供协助。在开曼群岛，新的重组支持官员制度提供了一个有用的体系，为董事提供休整期，以便在适当的情况下促进和实施可行的计划。

Mainzeal 的最新决定再次提醒大家，公司董事未能采纳建议和采取适当行动可能会导致严重后果。

Mainzeal 决定

Section 544(b)(1) of the Bankruptcy Code enables a trustee to step into the shoes of a creditor and avoid a transfer “of an interest of the debtor in property” that an unsecured creditor could avoid under applicable state law. See 11 U.S.C. § 544(b)(1). Thus, for example, if outside of bankruptcy a creditor could avoid a transaction entered by a debtor as a fraudulent transfer, in bankruptcy, the trustee acquires the power to avoid such a transaction.

On June 30, the Supreme Court ruled that the Biden administration did not have authority to forgive student loans under the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act). Despite this defeat, the Biden administration is still working to reduce the burden of student loans. Advocates for student loan relief argue that student loans can be a crushing form of debt in part because of their treatment in bankruptcy. It is the common belief that student loans, unlike other forms of unsecured debt, are not dischargeable in bankruptcy.

1.1 The overriding objective

(1) The overriding objective of these rules is to enable the court to deal with cases justly.

(2) Dealing justly with the case includes –

(a) ensuring, so far as is practicable, that the parties are on an equal footing;

(b) saving expense;

(c) dealing with cases in ways which are proportionate to the –

(i) amount of money involved;

(ii) importance of the case;

(iii) complexity of the issues; and (iv) financial position of each party;

(d) ensuring that it is dealt with expeditiously; and

Sometimes we blog about cases with unusual fact patterns. The cases don’t stand for any overriding legal principle. They might not have application beyond the parties to them. But they can make for good reading, giving insight into how judges analyze and rule on the issues at stake.

A recent decision in the District of Delaware is such a case. In re Mabvax Therapeutics Holdings, Inc., No. 19-10603, 2023 Bankr. LEXIS 1557 (Bankr. D. Del. June 15, 2023).

When he was appointed by the Eleventh Circuit, U.S. Bankruptcy Judge Peter D. Russin probably did not expect to have to decide who has rights to the Twitter, Instagram, and TikTok handles associated with social-media-forward energy-drink brands. But that is exactly what Judge Russin did in a recent opinion related to the bankruptcy of “Bang” energy drink’s manufacturer, Vital Pharmaceutical, Inc.

On 8 March 2023, the Grand Court of the Cayman Islands appointed Joint Provisional Liquidators (“JPLs”) over Atom Holdings (the “Company”), a Cayman incorporated holding company for the Atom Group, which operated a cryptocurrency exchange via an online platform known as AAX (Atom Asset Exchange).

By means of a category two Public Trustee v Cooper application, in which Jeffrey Elkinson and Britt Smith of Conyers, led by Brian Green KC, acted for the successful plaintiffs, the first plaintiff as trustee, and the second plaintiff as protector, of three family trusts¹ sought to give effect to a 2018 settlement agreement reached between all of the adult beneficiaries concerning the collective assets in the trusts.