December 2 marks the 15th anniversary of the Enron bankruptcy—a near cataclysmic event that ultimately led to a series of significant legislative, regulatory and public policy developments that inform governance practices to this day. The entire board would be well served by a brief overview of the governance impact of Enron, particularly since many directors were not in board service 15 years ago.

Introduction

Chapter 15 of the Bankruptcy Code, which deals with cross-border insolvency cases, took effect nearly 11 years ago.(1) Congress enacted Chapter 15 in 2005 to replace Bankruptcy Code Section 304, which previously addressed transnational insolvencies.(2) Chapter 15 largely incorporates the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Cross-Border Insolvency, which was promulgated in May 1997. The Model Law is designed:

Introduction

The Supreme Court will consider these key questions next term in Czyzewski v Jevic Holding Corp:(1)

On July 14, 2016, the US Department of Justice (DOJ) announced that the restructuring of a planned $1.5 billion transaction between Tullett Prebon Group Ltd. (Tullett Prebon) and ICAP plc adequately addresses the DOJ’s concerns that the transaction would violate Section 8 of the Clayton Act by creating an interlocking directorate. The parties restructured their transaction after the DOJ issued a Second Request to adequately investigate the parties post-closing ownership structure.

Introduction

On July 13 2016, the US Supreme Court issued its ruling in Puerto Rico v Franklin California Tax-Free Trust. Affirming the decision of the court of appeals, the Supreme Court ruled by a vote of five to two that the US Bankruptcy Code pre-empts the Recovery Act, which Puerto Rico enacted in 2014 to address its mounting debt crisis.

On June 22, 2016, the Bankruptcy Court for the District of Delaware allowed a putative creditor class to file a class proof of claim in the In re Pacific Sunwear of California, Inc., et al., bankruptcy proceedings.[1]  In granting

In a world of free-ranging capital and cross-border transactions, the question of whether US courts will apply US law to transactions taking place in other countries is important. It is therefore a matter of both interest and concern that judges in the Southern District of New York have reached opposite conclusions when asked to give extraterritorial effect to the avoidance or 'clawback' provisions of the Bankruptcy Code.

Canon of statutory construction

Summary

The US Court of Appeals recently decided in In re Tribune Co Fraudulent Conveyance Litigation(1) that Section 546(e) of the Bankruptcy Code(2) impliedly pre-empts state fraudulent conveyance laws that creditors might otherwise use to unwind payments made by a corporate debtor to public shareholders in a pre-bankruptcy leveraged buy-out.

On April 15, 2016, the Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”) halted the attempt of plaintiffs who were injured in an accident involving a General Motors vehicle to seek recourse against General Motors LLC (“New GM”) in state court, finding that New GM did not assume liability for the plaintiffs’ claims.  This decision provides yet another reminder to t