This article was first published in the LexisNexis Corporate Rescue and Insolvency Journal (2017) 2 CRI 45.
Key Issues
The Supreme Court issued its much-anticipated ruling in Czyzewski v. Jevic Holding Corp., 580 U.S. ___ (2017)1 on March 21, reversing the Third Circuit Court of Appeals’ affirmance of an order approving the distribution of the proceeds of settlement of bankruptcy estate causes of action to general unsecured creditors via structured dismissal, with no distribution to holders of priority wage claims.
The Court framed the question presented, and its ruling, very narrowly—twice. First:
In a very recent decision, the U.S. District Court for the Southern District of New York determined that a negative inference to an exception to a negative covenant prevented a company from undertaking a proposed restructuring transaction. We find the case unique not because of the result necessarily, but rather because the court used the negative inference to override another express provision in the Credit Agreement.
Original news
Mikki v Duncan [2016] EWCA Civ 1312, [2017] All ER (D) 157 (Feb)
To start, let me introduce some familiar characters. First, an impecunious claimant who has the benefit of after the event (ATE) insurance, but the disadvantage of an incompetent solicitor. Second, a successful defendant with the benefit of a costs order and a final costs certificate, but the disadvantage of a slippery ATE insurer who has avoided the claimant’s ATE policy because of failures by the aforesaid incompetent solicitor. Different ways around this problem have been tried, and generally failed.
Although there has been much discussion of the Second Circuit’s recent decision in Marblegate, this article addresses a question other commentators have yet to tackle: namely, how the Second Circuit’s decision impacts the Trust Indenture Act’s protection of guarantee obligations included in an indenture. Below we provide our view on how Marblegate affects indenture guarantees. More specifically, we discuss how the decision is consistent with provisions of the TIA that expressly protect a noteholder’s payment rights under a guarantee.
Synopsis
- On 29th September 2004 the Trustees of the Ashtead United Charity allocated Mrs Janet Watts accommodation in an almshouse, in fact one of 14 residential flats the Charity owned at Ashstead in Surrey. In May 2015 they issued proceedings for possession based on the allegations that Mrs Watts had acted in an anti-social manner, swearing, spitting, and aggression. This was a breach of the terms of the Appointments Letter under which she was allocated the property.
Facts
The appellant is a company trading in electrical goods which regularly supplied Edge Electrical Ltd ('Edge'). Their standard terms provided Edge with a short period of credit before payment was required.
Facts
Angove’s PTY Ltd (‘Angove’s’) is an Australian winemaker which for many years had employed D&D Wines International Ltd (‘D&D’) to distribute its products to retailers. In addition, D&D also purchased wine for itself direct from Angove’s. Their business relationship was governed by an Agency and Distribution Agreement (‘ADA’) entered in December 2011. Amongst its provisions, the ADA entitled the parties to terminate the agreement with immediate effect upon either becoming insolvent.