On June 27, 2017, the United States Supreme Court granted the petition for writ of certiorari regarding the decision In re Province Grande Olde Liberty, LLC, 655 Fed.Appx. 971 (4th Cir. Aug. 12, 2016) to decide a circuit split on the applicable standard for debt recharacterization.

On January 24, 2017, victims of Bernard Madoff’s Ponzi scheme lost their appeal of a bankruptcy court decision barring them from suing an alleged Madoff co-conspirator because of a third-party injunction contained in a settlement between the alleged co-conspirator and the Trustee liquidating Madoff’s scheme. See A & G Goldman Partnership v. Capital Growth Company (In re Bernard L. Madoff Investment Securities LLC), 565 B.R. 510, 514-515 (S.D.N.Y. Jan.

On May 8, 2017, the U.S. Bankruptcy Court for the Middle District of Florida entered an order compelling production of attorney-client communications between Regions Bank and its counsel, finding that Regions had put those communications “at issue” by raising a good faith affirmative defense under 11 U.S.C. § 548(c) in response to a fraudulent transfer claim brought against it. Welch v. Regions Bank (In re Mongelluzzi), No. 8:14-ap-00653-CED (Bankr. M.D. Fla. May 8, 2017), ECF No. 319 (Delano, J.) (herein Mongelluzzi).

In First Southern National Bank v. Sunnyslope Housing Limited Partnership, No. 12-17241 (9th Cir. May 26, 2017), the Ninth Circuit Court of Appeals, in an en banc decision, held that, for purposes of confirmation of a plan of reorganization over a mortgagee’s objection, the value of the mortgagee’s secured claim was the value of the property as low income housing not the value the mortgagee would have received on foreclosure free of the low income housing restrictions.

The number of consumer claims filed since the Great Recession has skyrocketed. These claims include alleged violations of an “alphabet soup” of federal and state consumer protection statutes. These statutes allow prevailing plaintiffs to recover some combination of actual damages, statutory damages, and even attorney’s fees. They also present a minimal risk of liability for defense costs if the plaintiff does not prevail, which makes these types of claims enticing for plaintiffs’ attorneys.

This case raised the issue of when a company in financial distress (or the directors of that company) should issue a Notice of Intention to Appoint an Administrator (“NOITA”) which affords a moratorium under Schedule B1 of the Insolvency Act 1986 (“IA86”).

In Pacifica L 51 LLC v. New Investments, Inc. (In re New Investments, Inc.), 840 F.3d 1137 (9th Cir. 2016), the Ninth Circuit Court of Appeals held that Section 1123(d) of the Bankruptcy Code provides that a cure amount may include a post-default rate of interest if the underlying loan documents and applicable non-bankruptcy law provide for the payment of post-default rate interest upon a default.

You will have previously seen a landlord's consent is usually required to enable a pharmacist to assign or sell their lease to a third party.

It is usual for the landlord's consent to be specified not to be unreasonably withheld or delayed.

On a lease assignment a landlord will want to ensure that the tenant is of sufficient financial strength to be able to comply with the lease covenants (including payment of the rent).

On 30 September 2016, the Competition and Markets Authority (“CMA”) published its finding that two companies involved in the online retail of licensed sport and entertainment posters and frames had breached the Competition Act 1998 (“CA98”) by entering into agreements (or, at least, ‘concerted practices’) to artificially inflate the prices charged for certain products. A formal charge was accepted by the main protagonist, Trod Limited (in administration) (“Trod”) and fines imposed, which became payable by Trod’s administrators as of 13 October 2016.

Horton v Henry: Pensions clarified

We previously discussed the uncertainty surrounding the treatment of pensions in a bankruptcy which arose from two conflicting high court decisions: Raithatha v Williamson [2012] EWHC 909 (Ch) and Horton v Henry [2014] EWHC 4209 (Ch).

In Hinton v Wotherspoon [2016] EWHC 623 (CH) (where this firm successfully represented the trustee in bankruptcy, Lloyd Hinton of Insolve Plus Limited), the court commented that the approach in Horton v Henry [2014] EWHC 4209 (Ch) was “plainly correct”.