Alexandra Vinogradova v (1) Elena Vinogradova, (2) Sergey Vinogradov (BVIHCMAP 2018/052)

With the States of Guernsey's approval yesterday of the Companies (Guernsey) Law, 2008 (Insolvency) (Amendment) Ordinance, 2020 (the "Ordinance"), Guernsey took a step towards further enhancing its reputation as a robust jurisdiction for restructuring and insolvency.

The laws of preferential and fraudulent transfers under the Bankruptcy Code can often seem theoretical and formulaic. When certain boxes are checked, it appears, at first blush, that a pre-bankruptcy transfer can be avoided, regardless of any intent or surrounding circumstances.

In MicroBilt Corporation v. Ranger Specialty Income Fund, L.P. et al. (In re Princeton AlternativeIncome Fund,LP), Case No. 3:18-CV-16557 (D.N.J. Nov. 27, 2019), the District Court for the District of New Jersey recently affirmed a bankruptcy court's decision to appoint a chapter 11 trustee, without conducting a traditional evidentiary hearing.  The holding reinforces that a bankruptcy court has broad discretion to grant extreme remedies in a case.

Facts

In In re Linn Energy, LLC, 2019 WL 4149481 (5th Cir. Sept. 3, 2019), the Fifth Circuit recently reminded us that if a debt instrument looks like a security and quacks like a security, it likely is a security for purposes of subordination under section 510(b) of the Bankruptcy Code. The implications of characterizing an instrument as a security under section 510(b) is that any claim arising therefrom is subject to subordination to general unsecured creditors.

A debtor has the right to assume or reject any executory contract or unexpired lease through its bankruptcy, pursuant to the Bankruptcy Code. A trademark license is an executory contract that is subject to assumption or rejection if performance remains due from both parties to the contract. A debtor will reject a trademark license if it believes that there is no net benefit to the counterparty to the contract continuing to perform its obligations and thereby will repudiate any further performance of its obligations.

A debtor has the right to assume or reject any executory contract or unexpired lease through its bankruptcy, pursuant to the Bankruptcy Code.  A trademark license is an executory contract that is subject to assumption or rejection if performance remains due from both parties to the contract.

If a company becomes insolvent or experiences a liquidity crunch, which necessitates a restructuring or resort to higher-risk financing arrangements, the directors should consider whether to commence formal proceedings to facilitate the restructuring or financing.

In Popular Auto, Inc. v. Reyes-Colon (In re Reyes-Colon), Nos. 17-1971, 17-1972, 2019 WL 1785039 (1st Cir. April 24, 2019), the First Circuit recently ruled that “special circumstances” does not authorize a bankruptcy court to use its equitable powers to contravene the numerosity requirement for an involuntary petition under section 303(b)(1) of the Code. This twelve year dispute did not end well for the petitioning creditors.

Addressing unknown future claims in a chapter 11 bankruptcy involves two competing concerns: (a) providing a debtor with a fresh start and (b) providing an unwitting claimant with due process. These competing concerns clash when a debtor seeks to confirm its plan of reorganization, which is intended to provide remedies to all the debtor’s creditors and provide the debtor with a discharge of all pre-confirmation liabilities.