In several recent judgments in cases centring on complex commercial and regulatory disputes, the High Court has grappled with a number of important aspects of legal professional privilege under English law. Certain of these decisions, and their implications for parties to such disputes, are highlighted below.

Litigation privilege: sole or dominant purpose

October Bankruptcy Developments

In a victory for minority noteholders opposing an out-of-court restructuring of their distressed issuer, New York's highest court ruled last week that a holder's right to receive or sue for payment on its notes survived an exercise of statutory remedies by the trustee, conducted at the direction of a noteholder majority, that would have cancelled the holder's notes without its consent and replaced them with equity securities.

1. Background and Overview

As described in our Client Alert "The new German business stabilization and restructuring regime ("German Scheme")" dated 12 October 2020, the German Federal Ministry of Justice and Consumer Protection had presented a draft bill (the "Original Bill") to introduce a new business stabilization and restructuring framework - the new "German Scheme" - into German law.

The German Federal Ministry of Justice and Consumer Protection has recently presented the longawaited draft bill to introduce a new pre-insolvency business stabilization and restructuring regime into German law.1 The availability of this ground-breaking new "German Scheme" will significantly change the German restructuring landscape and elevate it to an internationally competitive level.

On Monday 14th September 2020, Mrs Justice Falk issued her reasoned judgment, in respect of the application by Codere Finance 2 (UK) Limited (the "Company") to convene a single class of its creditors to consider and vote on a proposed scheme of arrangement under Part 26 of the Companies Act 2006 ( the "Scheme").

In a hearing spanning three days, the High Court of England and Wales addressed multiple grounds of challenge from a dissenting noteholder but nonetheless granted the Company's request to convene a single meeting of its scheme creditors.

Background

1. Background: Temporary Modification of the German Insolvency Regime to avoid COVID-19-related Insolvencies in Germany expires on 30 September 2020

July Bankruptcy and Restructuring Developments

The US Court of Appeals for the Tenth Circuit has ruled that proceeds from property that was fraudulently transferred cannot be recovered under Section 550 of the Bankruptcy Code.[1] This decision limits a subsequent recipient’s exposure where the initial transferee of the property had altered the form of the property that was initially received prior to transferring it to that subsequent recipient.

The Main Street Lending Program is designed to help companies that were in sound financial condition prior to the COVID-19 pandemic to maintain their operations and payroll until conditions normalize. This White Paper gives a broad understanding of the program’s terms and implications by delving into the key questions that market participants are likely to have about the program and addressing the latest changes implemented in the final legal forms and agreements.