On July 6, the FDIC adopted a final rule addressing the rights and powers of the FDIC as a receiver of a nonviable systemic financial company under the orderly liquidation provisions of Title II of the Dodd-Frank Act.  The rule addresses: (i) recoupment of compensation from senior executives and directors as well as the receiver's power to avoid fraudulent and preferential transfers; (ii) the priority of claims; and (iii) the receivership administrative claims process as well as secured claims procedures.  The lin

The Supreme Court recently issued its opinion in Stern v. Marshall (Stern), Case No. 10-179, 2011 WL 2472792 (U.S. June 23, 2011), invalidating the relatively common assumption that so called “core” bankruptcy proceedings are all matters in which the bankruptcy courts are permitted to enter final judgment, and undoubtedly fostering heightened jurisdictional scrutiny in the future.

The liquidator of Onslow Ditching Ltd (ODL), sought a declaration against two directors (on three grounds), seeking damages/fines or a contribution of assets from each director for:

On June 8, 2011, Governor Andrew M. Cuomo announced the appointment of Assemblyman Jonathan Bing to serve as Special Deputy Superintendent of the New York Liquidation Bureau, an agency tasked with protecting policyholders and creditors of insurance companies that have gone bankrupt.  Bing steps in as the successor to Dennis J. Hayes, who was appointed to the position in September 2009.  Bing’s appointment ends his fifth term in the New York State Assembly, where he has represented the 73rd District since November 2002.

The International Swaps and Derivatives Association, Inc. (“ISDA”) is preparing forms of amendment to its boilerplate master agreements in connection with market practice relating to the suspension of payments by a non-defaulting party. ISDA is also considering a protocol to implement the amendments into existing agreements on a multilateral basis.  

Following the Court of Appeal decision in their application to the Court for directions to enable them to identify client money and its traceable proceeds (as previously reported here), the administrators of Lehman Brothers International (Europe) sought further directions regarding the further work to be carried out, the evidence to be prepared and the identification of appropriate respondents and sought a protective costs order.

The English High court has approved a scheme of arrangement for a company incorporated in Germany which had its centre of main interests in Germany, no establishment in the UK and no assets in the UK likely to be affected by the scheme.

This case is one of a number of recent cases where restructurings of foreign companies have been effected by English schemes of arrangement. The court set out its reasoning in this case in some detail in view of the possibility that the European Court of Justice would consider some of the relevant issues in a forthcoming appeal in another case.

On April 25, 2011, the Rhode Island Superior Court (Silverstein, J.) ruled in favor of the constitutionality of the Voluntary Restructuring of Solvent Insurers Act (the “Restructuring Act”), a state statute enacted in 2002 that allows Rhode Island domestic commercial insurers and reinsurers (including those that redomesticate to Rhode Island) to enter into a commutation plan for their run-off business.

On April 18, the FDIC released a report examining how it could have structured an orderly resolution of Lehman Brothers Holdings Inc. using the orderly liquidation authority under Title II of theDodd-Frank Act. FDIC Release.

On April 21, the Fed issued a request for public information and comment on two bankruptcy-related studies required under the Dodd-Frank Act. One study will focus on the resolution of financial companies in Chapter 7 or Chapter 11 bankruptcy, and the other will focus on international coordination of the resolution of systemically important financial companies under the Bankruptcy Code and applicable foreign law. Comments must be submitted within 30 days after publication in the Federal Register.