What happened?

Toys R Us' failure was blamed on competition from online retailers, changing consumer spending habits as a result of inflation and increases in business rates.

Nevertheless, competing toy retailer The Entertainer announced sales growth of 6.8% and an increase in pre-tax profits of 37% last week. It does not show signs of succumbing to the pressures that led to the failure of Toys R Us.

How could retailers of similar goods, operating in the same market conditions have had such disparate experiences?

THE BANKING LAW JOURNAL

First Circuit Affirms Dismissal of Fraudulent Transfer and Fiduciary Duty Claims

Michael L. Cook* This article discusses a recent U.S. Court of Appeals for the First Circuit decision holding that the debt-financed purchase of a business was not a fraudulent transfer and did not violate the fiduciary duty of the company's directors.

Two big name high street retailers entered Administration in February: On 28 February, Toys R Us, whose financial struggles had been attracting media attention (not least from Ashfords' Restructuring & Insolvency Bulletin) since before Christmas, finally threw in the towel and appointed Administrators from Moorfields; while electrical goods firm Maplin also appointed PwC on the same day.

The saga of Carillion's collapse continued this month, as it transpired that accountancy giants EY had prepared plans to restructure the troubled construction firm as early as mid-December 2017.

In our recent article on restructuring options for retail businesses, we outlined how a number of companies in that sector had implemented or were considering Company Voluntary Arrangements (CVAs).

The Facts

This case is the latest twist in the ongoing saga of failed fintech "unicorn" Ve Interactive ("Ve"), who entered Administration in April 2017. Certain of Ve's creditors made an application to replace its Administrators, from Smith & Williamson LLP, with new Administrators from Deloitte.

Directors against whom claims for a misfeasance have been intimated often turn to limitation and set off in defence of a request for the repayment or restoration of the relevant sums or property.

Misfeasance and limitation

The securities safe harbor protection of Bankruptcy Code (“Code”) § 546(e) does not protect allegedly fraudulent “transfers in which financial institutions served as mere conduits,” held the U.S. Supreme Court on Feb. 27, 2018. Merit Management Group LP v. FTI Consulting Inc., 2018 WL 1054879, *7 (2018). Affirming the Seventh Circuit’s reinstatement of the bankruptcy trustee’s complaint alleging the insolvent debtor’s overpayment for a stock interest, the Court found the payment not covered by §546(e) and thus recoverable. The district court had dismissed the trustee’s claim.

Following the collapse of Monarch and Air Berlin last year, the International Air Transport Association ("IATA") has suggested that bankruptcy laws should be reviewed globally in order to allow a “reasonable timeframe” for airlines to continue operating after entering insolvency to allow more passengers to complete their journeys.

The deadline for interested purchasers of every child's favourite superstore, Toys R Us, to submit their letters of intent fell last week, with sources indicating that several parties had expressed interest in purchasing the beleaguered retailer. Hilco Capital, the company which saved HMV from Liquidation in 2013, have reportedly submitted a bid and are believed to be amongst the favourites for the troubled retailer.