In re Big M, Inc., No. 13-10233 (DHS), 2013 WL 1681489 (Bankr. D.N.J. April 17, 2013). In Big M, the Bankruptcy Court for the District of New Jersey (the “Bankruptcy Court”) held that the debtor’s privilege did not pass to the creditors’ committee, even though the creditors’ committee obtained authority to investigate certain of the debtor’s causes of action, because the committee was acting as a fiduciary to creditors as opposed to the debtor’s estate.

To deepen government reform and improve government efficiency, the State Council of the People's Republic of China recently released the Plans for Government Institutional Reform and Function Change (the Restructuring Plan), and was approved by People’s Congress at its first session and it took effect on March 14, 2013.

Few courts have construed the meaning of “repurchase agreement” as used in the Bankruptcy Code, so the recent HomeBanc¹ case out of the United States Bankruptcy Court for the District of Delaware is a must-read for “repo” counterparties. The principal issue in HomeBanc was whether several zero purchase price repo transactions under the parties’ contract for the sale and repurchase of mortgage-backed securities fell within the definition of a “repurchase agreement” in Section 101(47) of the Bankruptcy Code.

In In the Matter of Castleton Plaza, LP,¹ the Court of Appeals for the Seventh Circuit held that a new value plan that leaves creditor claims unpaid must be subjected to a market test if the new value is contributed by an insider. The decision by the Seventh Circuit expanded the competition requirement to insiders whether or not the insider is a holder of a claim or interest against the debtor.

International structures as used by multinational companies typically could include limited partnerships or general partnerships. If the Netherlands is involved in these international structures, these partnerships may be set up in such a way that they qualify as transparent for Dutch tax purposes. Further, partnerships could be used to manage the recognition of taxable income (for example, the so called CV‐BV structures). ThisGT Alert may be helpful in further managing and controlling the tax risks within such structures.

Rejecting the formalistic approach, the Delaware Bankruptcy Court in Indianapolis Downs, LLC¹ focused on the policies underlying the idea of the disclosure statement to uphold a post-petition lock-up agreement, entered into before approval of a disclosure statement, with sophisticated financial players who had access to the material information that the disclosure statement would have provided.

The Upstream C Reorganization

In the late 20th century, the IRS made a combination of unrelated decisions resulting in a proliferation of upstream C reorganizations. First was the repeal of the Bausch & Lomb rule, meaning that the equity held by a parent corporation in its subsidiary could count as continuity of interest, thus allowing the liquidation of a subsidiary to be treated as an upstream C reorganization. Second, the invention of the check-the-box regulations made subsidiary liquidations (and hence upstream reorganizations) so much easier.

In a measured opinion hewing closely to standard principles of contract interpretation, the United States Court of Appeals for the Second Circuit in NML Capital, Ltd. v. Republic of Argentina, No. 12-105, slip op. (2d Cir. Oct. 26, 2012), rejected the notion that a sovereign may issue bonds governed by New York state law and subject to the jurisdiction of the state’s courts, and then restructure those bonds in a manner that violates New York state law.

Becoming the first Court of Appeals to address an issue that has divided the bankruptcy and district courts, the Ninth Circuit adopted a forceful view of Stern v. Marshall,1 to hold in In re Bellingham Insurance Agency, Inc.2 that absent the parties’ consent, the limitations imposed by Article III of the Constitution deprive a bankruptcy judge of the constitutional authority to enter judgment on fraudulent transfer claims brought against parties who have not filed proofs of claim.

Law Decree No. 83/2012, providing “Urgent Measures for the Country's Development”

Law Decree No. 83 of 22 June 2012 (the “Decree”), effective as from 26 June 2012 and converted into law with amendments1, has introduced important measures aimed at stimulating the Italian economy (also referred to as “Decreto Sviluppo”).

The Decree, consisting of seventy articles, sets forth a heterogeneous set of rules, including, among other provisions, significant amendments to the Italian Bankruptcy Law.2