In Judge Glenn’s recent lengthy decision recognizing and enforcing a restructuring plan in the chapter 15 proceedings of In re Agrokor1, a Croatian company in Croatian insolvency proceedings, he highlighted that the concept of comity – respect for rulings in other countries – remains an important U.S.
Following our previous updates (Ebert Construction Receivership – What You Need to Know and Ebert Construction – Receivership and Liquidation), on 12 November 2018 the High Court ordered that the Receivers of Ebert Construction Ltd (in rec and liq) (Ebert) be appointed as the receivers
In the spirit of the season, we’re (re)visited by Doron Kenter, a member of the Weil Bankruptcy Blog’s O.G. Editorial Board (and, as far as we can tell, still holder of the dubious distinction of having published the most posts for us).
Among the many protections afforded creditors under the Bankruptcy Code is the estate’s ability to avoid transfers made before the petition date that benefit certain creditors at the expense of others. These so-called avoidance actions are primarily governed by Sections 544, 547 and 548 of the Bankruptcy Code, which set forth the requirements for challenging prepetition transfers as preferential or fraudulent.
Introduction
Following our Initial Note, the receivers of Ebert Construction Ltd (Ebert) released their first report on 1 October 2018. Then, on 3 October 2018, Ebert put itself into liquidation, with the liquidators subsequently issuing their first report on 10 October 2018. These developments have provided further information about Ebert’s financial position and the insolvency process.
In a recent decision enforcing the discharge injunction under Section 1107(d)(1)(A) of the Bankruptcy Code, the Bankruptcy Court for the Western District of Pennsylvania blocked a creditor from asserting a claim against the debtor after confirmation of the plan. The case of In re Trustees of Conneaut Lake Park, Inc.), No. 14-11277, 2018 Bankr. LEXIS 1447 (JAD) (Bankr. W.D. Pa.
The United States Supreme Court recently declined to review the United States Court of Appeals for the Second Circuit’s opinion in Momentive Performance Materials Inc. v. BOKF, NA. BOKF and Wilmington Trust, indenture trustees for Momentive’s First Lien Notes and 1.5 Lien Notes (which we’ll refer to as the “Senior Notes”) respectively, each submitted certiorari petitions after the Second Circuit held that they were not entitled to receive make-whole premiums following Momentive’s bankruptcy.
What Is a Make-Whole?
In the recent decision William R. Lee Irrevocable Trust v. Lee (In re Lee), the Seventh Circuit Court of Appeals affirmed a bankruptcy court’s decision (also affirmed by the district court) piercing a non-debtor’s corporate veil and allowing a creditor of the non-debtor to participate in the bankruptcy of the corporation’s individual shareholder.
Over the last two years, BEIS has issued a number of consultations either focussed on, or touching upon, corporate governance issues in insolvency or the broader insolvency framework.
In the novel A Frolic of His Own, by William Gaddis1, the protagonist, Oscar Crease, is run over by his own driverless car when it slips from park into neutral while Oscar is standing in front of the car trying to hot-wire it.