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Commercial Law Update - Banksia: Court of Appeal overturns approval of distributions to litigation funder

Introduction

In Botsman v Bolitho [2018] VSCA 278, the Court of Appeal unanimously allowed an appeal from the decision of Croft J to approve the settlement of two related proceedings arising from the failed merger of Banksia Securities Limited (Banksia) and Statewide Secured Investments Limited (Statewide).

Australia, Banking, Insolvency & Restructuring, Litigation, List G Barristers, New South Wales Supreme Court
SDNY District Court Holds That Bankruptcy Courts Have Core Jurisdiction and Constitutional Adjudicatory Authority over Involuntary Third-Party Releases

The Bottom Line

USA, New York, Capital Markets, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Bankruptcy, Res judicata and issue estoppel, US District Court for the Southern District of New York
Fifth Circuit Holds Executory Contract Not Listed on Bankruptcy Schedules Is Automatically Rejected Upon Expiration of 60-Day Period in Chapter 7 and Not Capable of Being Sold

The Bottom Line

The Fifth Circuit recently held in RPD Holdings, L.L.C. v. Tech Pharmacy Services (In re Provider Meds, L.L.C.), No. 17-1113 (5th Cir. Oct. 29, 2018), that a patent license that was not specifically listed on the debtors’ bankruptcy schedules was automatically deemed rejected where it was not assumed within 60 days of the cases’ conversion from Chapter 11 to Chapter 7.

What Happened?

USA, Texas, Insolvency & Restructuring, Litigation, Patents, Kramer Levin Naftalis & Frankel LLP, Bankruptcy, Fifth Circuit
Third Circuit Remands W.R. Grace Decision Concerning Plan Channeling Injunction and Insurance Providers, Providing Additional Insights for Third Parties and Claimants

The Bottom Line

USA, Insolvency & Restructuring, Insurance, Litigation, Kramer Levin Naftalis & Frankel LLP, Third Circuit
Commercial Law Update - When a payment of trust money is recovered as an unfair preference, does it become trust money once again?

Last Friday Derrington J in the Federal Court in Queensland tackled this question which remains unresolved in Australia, in Lane (Trustee), in the matter of Lee (Bankrupt) v Commissioner of Taxation (No 3) [2018] FCA 1572.

Australia, Queensland, Insolvency & Restructuring, Litigation, Private Client & Offshore Services, List G Barristers, Beneficial interest, Trustee
Horizontal Gifting Upheld in Chapter 11 Plan in the Third Circuit

The Bottom Line

USA, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP
Fourth Circuit Upholds Requirement That Appellant Have an Economic Stake in Outcome of Appeal to Be a ‘Person Aggrieved’ and Boots Moot Appeal Too

The Bottom Line

USA, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Fourth Circuit
Eleventh Circuit Narrows Circuit Split Holding New Value Not Required to Remain Unpaid

The Bottom Line

USA, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Eleventh Circuit
Delaware District Court Holds That a $30 Million Haircut Is Not Unfair Discrimination in a Cramdown Plan

The Bottom Line

USA, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Third Circuit
Third Circuit Affirms Bankruptcy Court Retention of Jurisdiction to Resolve Dispute Despite Arbitration Provision

The Bottom Line

The Third Circuit, in a nonprecedential opinion in FBI Wind Down, Inc. Liquidating Trust v. Heritage Home Group, LLC (In re FBI Wind Down Inc.), Case No. 17-2315 (3d Cir. July 27, 2018), recently held that the bankruptcy court retained jurisdiction over the parties’ dispute that centered on the definition of terms in a court-approved asset purchase agreement because the claims fell outside the scope of an arbitration provision in the agreement.

What Happened?

USA, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP