In UK venture deals, investors often negotiate the right to appoint a director to the company’s board (as a rule of thumb, an investor with 5% to 10% or more of the company might ask for board rights). On paper, it makes sense, giving a seat at the table, direct access to management, and visibility on key decisions. But before taking that seat, we often advise investors to ask themselves: is it worth the hassle?
The retail and hospitality sector in Australia remains relatively steady in terms of financial performance. However, retailers, including those in hospitality, continue to be faced with some persistent headwinds and difficult trading conditions. In our three (3) part series, we cover some of the challenges facing Australian businesses in the sector, including those exposed to external administrations, the strategies that are working via administration, and how early intervention and turnaround strategies can help preserve long term enterprise value for stakeholders.
Section 182 of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) (“CWUMPO”) renders the disposition of a company’s property after the presentation of a winding-up petition against it void, subject to any validation order granted by the court. This provision serves to preserve the company’s assets at the date of the winding-up petition for the general benefit of creditors, and to ensure that the statutory scheme of pari passu distribution can be implemented.
Introduction
Before the landmark decision of the Hong Kong Court of Final Appeal in Guy Kwok-Hung Lam v Tor Asia Credit Master Fund LP [2023] HKCFA 9 (“ReGuy Lam”), there had been a long-standing debate over the impact, if any, of an exclusive jurisdiction clause in favour of a foreign court (“EJC”) on the presentation of bankruptcy / winding-up petitions.
In its recent opinion in Raymond James & Associates Inc. v. Jalbert (In re German Pellets Louisiana LLC), 23-30040, 2024 WL 339101 (5th Cir. Jan. 30, 2024), the Fifth Circuit held that a confirmed bankruptcy plan enjoined a party from asserting certain indemnification counterclaims against a plan trustee because the party did not file a proof of claim.
Background
Whether a solar system is a “fixture” sounds like a mundane legal issue – but it has significant implications for the residential solar industry and for the financing of residential solar systems. If a system is regarded as a “fixture” of the house to which it is attached, then the enforceability and priority of the finance company’s lien on the system will be subject to applicable real estate law.
If your company is named in a new lawsuit or receives a EEOC charge, part of your review process should include checking to see if the filing complainant or plaintiff has a pending bankruptcy action. If so, the next step is to see if the claimant disclosed their lawsuit or administrative complaint in his or her bankruptcy petition. If not, you may have a successful estoppel argument.
For at least the past decade, federal bankruptcy courts have routinely prohibited cannabis businesses from seeking protection under federal bankruptcy law, regardless of whether a cannabis business is legally operating under state law.
The Director of the Justice Department’s U.S. Trustee Program (USTP), which oversees the administration of bankruptcy cases, is about to change for the first time in nearly 20 years. Clifford White will be stepping down from the role and consumer advocate Tara Twomey will be taking up the mantle.