In a recent judgment the Dutch Supreme Court ruled that the holder (an "Estate Claim Pledgee") of a right of pledge (an "Estate Claim Pledge") which secures one or more estate claims (each, a "Secured Estate Claim") is entitled to satisfy such claims out of the proceeds resulting from enforcement of such right of pledge ("Estate Claim Pledge Enforcement Proceeds") during the pledgor's bankruptcy provided that the claims have arisen from a legal relationship having come into existence prior to the bankruptcy.

Dutch Supreme Court 15 April 2016 (ECLI:NL:HR:2016:665)

In a recent judgment, the Dutch Supreme Court ruled that a party who purchases and accepts the transfer of moveable assets subject to a retention of title acquires a right of conditional ownership with respect to those moveable assets and has the power to create an unconditional right of pledge over such right of conditional ownership.

Parties to an appeal who condition a settlement on the vacating of the lower court’s judgment “may still [have] an appropriate remedy,” held the U.S. Court of Appeals for the Eleventh Circuit on July 12, 2016. Hartford Cas. Ins. Co. v. Crum & Forster Specialty Ins. Co., 2016 U.S. App LEXIS 12813, *15 (11th Cir. July 12, 2016). Reversing the district court’s “narrow” refusal to vacate its judgment after the parties had settled, the Eleventh Circuit found that “exceptional circumstances” warranted the vacatur. Id., at *3, *14.

A bankruptcy court’s asset sale order limiting specific pre-bankruptcy product liability claims required prior “actual or direct mail notice” to claimants when the debtor “knew or reasonably should have known about the claims,” held the U.S. Court of Appeals for the Second Circuit on July 13, 2016. In re Motors Liquidation Co., 2016 U.S. App. LEXIS 12848, *46-47 (2d Cir. July 13, 2016).

1. Inleiding

Dit is onze halfjaarlijkse nieuwsbrief over ontwikkelingen op het gebied van het Nederlandse vennootschaps- en ondernemingsrecht. In deze Corporate Update geven wij eerst een overzicht van enkele wetswijzigingen. Verder gaan we in op de stand van zaken van een aantal lopende wetsvoorstellen en tot slot signaleren wij nog enkele overige actualiteiten.

An individual Chapter 11 debtor’s “estate was diminishing” with no “reasonable likelihood of rehabilitation,” held the U.S. Court of Appeals for the First Circuit on July 5, 2016. In re Hoover, 2016 WL 3606918, *2 (1st Cir. July 5, 2016), affirming the bankruptcy court’s conversion of the case to a Chapter 7 liquidation. In a rare appellate decision on the conversion issue, the First Circuit affirmed the finding that the debtor had sold “inventory without replacing it with new inventory or retaining cash sufficient to offset the diminution.” Id. at *3.

A lender’s (“Lender”) derivative breach of fiduciary duty claims on behalf of Chapter 7 guarantor-Debtors cannot be time-barred because of Lender’s knowledge of the “[d]efendants’ conduct,” held the U.S. District Court for the District of Delaware on June 22, 2016. In re AMC Investors, LLC, 2016 U.S. Dist. LEXIS 80861, *16 (Del. June 22, 2016).

A debtor’s pre-bankruptcy repurchase of its stock for $150 million was not a fraudulent transfer because the debtor “could have sold off enough of its assets or alternatively obtained sufficient credit to continue its business for the foreseeable future,” held the U.S. Court of Appeals for the Second Circuit on June 15, 2016. In re Adelphia Communications Corp., 2016 WL3315847, *2 (2d Cir. June 15, 2016). Affirming the lower courts, the Second Circuit stressed that “the issue of adequate capitalization,” the “sole issue presented on appeal ...

“Puerto Rico’s Recovery Act is barred by § 903(1) … of the Bankruptcy Code,” held the U.S. Supreme Court on June 13, 2016. Commonwealth of Puerto Rico v. Franklin California Tax-Free Trust, 2016 WL 3221517, *11 (U.S. June 13, 2016) (5-2). Affirming the First Circuit, the court reasoned that Code § 903(i) “preempts state bankruptcy laws [enabling] insolvent municipalities to restructure their debts over the objections of creditors [and] instead requires municipalities to restructure [their] debts under Chapter 9 of the Code.” Id., at *2.

In the event of bankruptcy, creditors are entitled to disclosure of the bookkeeping of the estate under certain conditions. In its decision dated 8 April 2016 (ECLI:NL:HR:2016:612), the Dutch Supreme Court ruled that this right is limited and depends on the purpose of the disclosure. Creditors are not entitled to disclosure if the purpose is to retrieve information to support their claim against a third party.