In deze blog signaleren wij kort enkele belangwekkende bestuursrechtelijke en omgevingsrechtelijke uitspraken van de afgelopen periode. 

Hoge Raad: regeling proceskostenvergoeding voor fiscale bezwaarprocedures mogelijk in strijd met discriminatieverbod (art. 1 Grondwet) 

On June 27, 2024, the United States Supreme Court issued its decision in Harrington v. Purdue Pharma LP, addressing the question of whether a company can use bankruptcy to resolve the liability of non-debtor third parties. The Supreme Court, in a 5-4 decision, held that the bankruptcy code does not authorize a release and an injunction that, as part of a plan of reorganization under Chapter 11, effectively seek to discharge the claims against a nondebtor without the consent of the affected claimants.

On June 27, 2024, the Supreme Court issued its opinion in Harrington v. Purdue Pharma L.P., 603 U.S. ____ (2024) holding that the Bankruptcy Code does not allow for the inclusion of non-consensual third-party releases in chapter 11 plans. This decision settles a long-standing circuit split on the propriety of such releases and clarifies that a plan may not provide for the release of claims against non-debtors without the consent of the claimants.

The New York State Legislature recently proposed a bill, entitled the Sovereign Debt Stability Act, [1] intended to facilitate sovereign debt restructuring.

Financial restructurings are becoming increasingly common in the current financial climate, also in the Netherlands. Since the implementation of the Dutch scheme of arrangement on 1 January 2021, a relatively new tool to restructure debts of Dutch corporate entities in order to prevent their insolvency is available in the Netherlands. Under the Dutch scheme of arrangement, a creditors composition is binding on all creditors if a sufficient number of (classes of) creditors vote in favour of the scheme. In principle, the preferential order of priority for secured creditors, e.g.

As you know from our prior alerts, creditors of borrowers formed as Delaware LLCs (as opposed to corporations) lack standing under Delaware law to sue directors for breaching fiduciary duties even when, to the surprise of many, the LLC is insolvent. See our prior Alert. The disparity of substantive creditor rights depending entirely on corporate form results from two aspects of Delaware law.

There is a growing trend of bankruptcy courts approving structured dismissals of chapter 11 cases following a successful sale of a debtor’s assets under section 363 of the Bankruptcy Code. A structured dismissal is a cost‑effective way for a debtor to exit chapter 11 and is an alternative to (a) confirming a post‑sale liquidating plan, which is expensive and not always viable, or (b) converting the case to chapter 7, which introduces significant uncertainty and unpredictability with the appointment of a chapter 7 trustee to replace management.

In its recent German Pellets decision, the Fifth Circuit held that a creditor could not assert its indemnification defenses in a suit brought by the trustee of a liquidation trust because the Chapter 11 plan’s express language permanently enjoined the defenses and the creditor chose not to participate in the debtor’s bankruptcy despite having actual knowledge of it.

When leveraged buyouts (“LBOs”) fail, the selling shareholders are litigation targets. A common suit is a claim by a bankruptcy trustee asserting constructive fraudulent transfer claims seeking to claw-back payments to the selling shareholders from the loan proceeds that financed the LBO.

The Dutch Supreme Court handed down a judgment (ECLI:NL:HR:2023:1751) on 15 December 2023 clarifying whether agreements entered into by a bankruptcy trustee with the approval of the supervisory judge can be affected by an application under Article 69 of the Dutch Bankruptcy Act (DBA).