Weil's Appellate & Strategic Counseling group welcomes you to Weil's SCOTUS Term Review. Here, we summarize and analyze the cases from the 2023 Supreme Court Term that are most germane to our clients' businesses.

In Harrington v. Purdue Pharma LP, in a 5-4 decision, the Supreme Court held that the Bankruptcy Code does not authorize bankruptcy courts to confirm a Chapter 11 bankruptcy plan that discharges creditors’ claims against third parties without the consent of the affected claimants. The decision rejects the bankruptcy plan of Purdue Pharma, which had released members of the Sackler family from liability for their role in the opioid crisis. Justice Gorsuch wrote the majority decision. Justice Kavanaugh dissented, joined by Chief Justice Roberts and Justices Kagan and Sotomayor.

Today, in Office of the United States Trustee v. John Q Hammons Fall 2006, LLC, the Supreme Court held that debtors who paid fees in bankruptcy cases administered by the U.S. Trustee Program are not entitled to any relief, even though the Court previously ruled that those debtors had been unconstitutionally overcharged. This decision is the culmination of several years of litigation concerning differential fee structures across judicial districts.

This morning, the Supreme Court decided Truck Insurance Exchange v. Kaiser Gypsum Co., which clarifies that any party with a "direct financial stake in the outcome" of a reorganization has standing as a "party in interest" to object to a Chapter 11 plan. 11 U.S.C. 1109(b). Writing for a unanimous Court, Justice Sotomayor held that the debtor's insurer has standing to object even if the plan purports to preserve the insurer's legal rights and thus is said to be "insurance neutral."

Borrower beware: in times of distress, your credit documents may give your secured lenders an opportunity to “flip” control of your board

Distress happens, even at companies that once appeared financially solid. When it does, the company, its board (which may be controlled by a sponsor in a public or private equity scenario), and its lenders often enter into restructuring discussions in search of a consensual path forward, typically under the terms of a forbearance agreement.

The latest amendment to the Slovenian Insolvency Act (Zakon o finančnem poslovanju, postopkih zaradi insolventnosti in prisilnem prenehanju or ZFPPIPP-H), which entered into force in late 2023, introduced the concept of likely or threatening insolvency and additional duties for the company and its management, which were first described in the article Amendment to the Slovenian Insolvency Act brings additional duties to the management and supervisory bodies, published in CEE Legal Matters (

On 7 December 2022, the EU Commission published a draft directive harmonising certain aspects of insolvency law, which is now undergoing EU legislative procedure. In light of this the proposal, this article provides an overview of the current state of avoidance rights regulation under the insolvency legal framework in Bosnia and Herzegovina.

Insolvency avoidance rights regulation in Bosnia and Herzegovina

In response to the EU Commission's proposal for a directive to harmonse specific elements of insolvency law on 7 December 2022, this article explores avoidance actions, one of the Directive Proposal’s key aspects, and the way avoidance actions are regulated in Serbia and Montenegro as EU candidate countries.

In the context of insolvency proceedings, avoidance actions involve the annulment of transactions undertaken by the insolvent debtor before the initiation of insolvency proceedings.

Avoidance actions in Serbia

The proposed EU Directive on the harmonisation of insolvency law aims to establish minimum conditions for exercising avoidance actions in insolvency proceedings in order to protect the bankruptcy estate against unlawful deprivation of assets prior to the opening of insolvency proceedings. In Slovenia, existing contestation rights provide a strict legal framework to prevent such transfers of assets and the proposed Directive is expected to strengthen them.

Scope of avoidance rules

On 1 November 2023, the long-awaited amendment to the Slovenian Insolvency Act (Zakon o finančnem poslovanju, postopkih zaradi insolventnosti in prisilnem prenehanju or ZFPPIPP-H) has entered into force.