Fulltext Search
SDNY Bankruptcy Court Finds Bar Date Applies to Pension Fund’s Withdrawal Liability Claim Before Withdrawal Occurs

The Bottom Line

The U.S. Bankruptcy Court for the Southern District of New York entered a decision confirming the applicability of the Court’s bar date order as it relates to a pension fund’s claim for withdrawal liability filed after the bar date, despite the fact that the withdrawal occurred after the deadline for filing proofs of claim.

What Happened?

USA, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Mutual fund, Investment funds, US District Court for the Southern District of New York
Administrators and liquidators must take information requests seriously: Cost consequences for non-compliance

In the recent case of 1st Fleet Pty Ltd (in liquidation), the Court clarified the information disclosure obligations of external administrators in the Insolvency Practice Schedule (Corporations) (IPSC) and Insolvency Practice Rules (Corporations) 2016 (Rules).

There is only a short time period for compliance, and there can be cost consequences for non compliance.

Australia, Company & Commercial, Insolvency & Restructuring, Litigation, Cooper Grace Ward, Liquidator (law), Australian Taxation Office, Corporations Act 2001 (Australia)
Southern District of New York Dismisses Securities Law Claims on Grounds of International Comity; No Chapter 15 Proceeding Required

The Bottom Line

Canada, USA, New York, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Companies' Creditors Arrangement Act 1933 (Canada), US District Court for the Southern District of New York
Fifth Circuit Analyzes Creditor’s Impairment, Entitlements to Contractual Make-Whole and Post-Petition Interest Under Solvent-Debtor Chapter 11 Plan

The Bottom Line

USA, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, United States bankruptcy court, Fifth Circuit
Serving a creditor’s statutory demand on a company where you are a director

In business it is not uncommon for a director of a company to be owed money by that company.

If the commercial relationship breaks down, the director may think it is an option to serve a creditor’s statutory demand on the debtor company.

However, recent court decisions demonstrate that issuing a creditor’s statutory demand is not a sure fire method of obtaining payment where the director is owed the debt personally or is a director of both the creditor and debtor companies.

Cases where statutory demands have been successfully challenged

Australia, New South Wales, Queensland, Company & Commercial, Insolvency & Restructuring, Litigation, Cooper Grace Ward, Corporations Act 2001 (Australia), New South Wales Supreme Court
Bankruptcy Court for the Southern District of New York Holds That Bankruptcy Court Retains Jurisdiction Over Fraudulent Transfer Action Even If Defendant-Creditor Withdraws Proof of Claim

The Bottom Line

USA, New York, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, United States bankruptcy court
Fifth Circuit Disallows Make-Whole Payment in Bankruptcy

On Jan. 19, 2019, the U.S. Court of Appeals for the Fifth Circuit vacated a bankruptcy court decision awarding Ultra Petroleum Corp. noteholders $201 million in make-whole payments and $186 million in post-petition interest. Under the note agreement, upon a bankruptcy filing, the issuer is obligated for a make-whole amount equal to the discounted value of the remaining scheduled payments (including principal and interest that would be due after prepayment) less the principal amount of the notes.

USA, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Bankruptcy, Fifth Circuit
Fifth Circuit Holds That Creditor Lacks Constitutional Standing to Appeal

The Bottom Line

USA, Insolvency & Restructuring, Litigation, Shipping & Transport, Kramer Levin Naftalis & Frankel LLP, ING Group, Fifth Circuit
Delaware Bankruptcy Court Finds that Section 546(e) Does Not Protect Fraudulent Transfers Following Supreme Court’s Ruling in Merit Management

The Bottom Line

In one of the first applications of the Supreme Court’s ruling on the scope of section 546(e) in Merit Management, Delaware Bankruptcy Court Judge Carey found that section 546(e)’s safe harbor did not apply to fraudulent transfers between two parties that were not financial institutions, even if the transaction passed through financial intermediaries.

What Happened

USA, Delaware, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, United States bankruptcy court
Insurance Rehabilitation Proceeding in Curaçao Recognized by New York Bankruptcy Court

The Bottom Line

In In re ENNIA Caribe Holding N.V., 18-12908 (Bankr. S.D.N.Y. Dec. 20, 2018), a bankruptcy court in the Southern District of New York recognized a foreign insurance company’s rehabilitation proceeding in Curaçao as a “foreign main proceeding,” pursuant to Chapter 15 of the Bankruptcy Code, over objections from the insurance company’s nondebtor parent company. In doing so, the court examined, among other things, what is required for a “collective proceeding” in a foreign insolvency.

What Happened

USA, New York, Insolvency & Restructuring, Litigation, Private Client & Offshore Services, Kramer Levin Naftalis & Frankel LLP, United States bankruptcy court, US District Court for the Southern District of New York