The consequences of an order or judgement being final or interlocutory are enormous. An order from an interlocutory order requires leave since these orders are not appealable as of right. In addition, a failure to obtain leave may result in the issue becoming moot. This is especially so when motions to lift the stay are involved: if the motion is denied and is not immediately appealable, by the time the case is concluded, the issues will most likely be moot.

The Second Circuit Court of Appeals recently held in In re Tribune Company Fraudulent Conveyance Litigation, No. 13-3992-cv (L) (2d Cir., Dec. 19, 2019) that Bankruptcy Code Section 546(e) barred claims seeking to avoid payments made by Tribune to its shareholders as part of a leveraged buyout (LBO).

Yes, says the Third Circuit. The Third Circuit recently held that the Bankruptcy Court has the authority to confirm a chapter 11 plan which contains nonconsensual, third-party releases when such releases are integral to the successful reorganization. The court’s decision in In re Millennium holds that, when the third-party releases are integral to the restructuring of the debtor-creditor relationship, the Bankruptcy Court has the constitutional authority to approve nonconsensual, third-party releases.

Background

Pension Schemes Bill – Additional hurdle for English law restructurings?

The intention was that the Pension Schemes Bill would enhance the Pensions Regulator’s powers to respond earlier when employers fail to take their pension responsibilities seriously, targeting “reckless bosses who plunder people’s pension pots”. However, the new criminal offences proposed as part of the Bill may inadvertently create additional hurdles for English law restructurings, making them potentially more expensive and difficult.

The Pension Schemes Bill promised in the Queen’s Speech has been introduced into Parliament. At nearly 200 pages the Bill is comprehensive, wide-ranging and ticks many of the boxes on the Pensions Regulator’s wish list. It substantially reflects the Bill which briefly appeared in the autumn: this time, it seems likely to make it to the statute book. The Bill as drafted has potentially far-reaching implications, if it is passed substantially in its current form.

Transactions and restructuring

In the fifth opinion involving the repo liquidation saga of HomeBanc, the Third Circuit addressed several crucial issues involving the liquidation and valuation of repo collateral in bankruptcy. In re HomeBanc Mortg. Corp., 2019 WL 7161215 (3d Cir. Dec. 24, 2019).

Background

Introduction

The Court of Justice of the EU (CJEU) has held once again that the Insolvency Directive does not require member states to put measures in place to fully fund lost pension rights on the insolvency of an employer. This conclusion is contrary to some reporting in the pensions press earlier today.

Judge Barber has considered the order of priority of payments in an administration and - more specifically - whether the Lundy Granite principle applies to both the rent payable once a company has gone into administration, and to the “top up” obligation requiring the company to replenish a rent deposit, where a landlord had drawn down on the deposit against unpaid rent (Re London Bridge Entertainment Partners LLP (in administration) [2019] EWHC 2932 (CH)).

The Rules

Background

The aim of the compensation order regime, to make directors financially account for the consequences of their unfit conduct, applies to directors’ conduct after 1 October 2015 and gives the Secretary of State (“SoS”) the power to apply for a compensation order against a director who is either subject to a disqualification order or who has given a disqualification undertaking and the conduct of that person has caused loss to one or more creditors of the insolvent company.