In a provocative demonstration that it scrutinizes all types of transactions, no matter their origin, the Committee on Foreign Investment in the United States (“CFIUS”) has reportedly been vetting the proposed $1 billion sale of bankrupt crypto lender Voyager Digital’s assets to Binance.US. Voyager Digital filed for Chapter 11 bankruptcy in July 2022, and, after an initial agreement to sell its assets to FTX crumbled, Binance.US provided Voyager Digital with the winning offer for its assets in December 2022. But, after the sale’s announcement on December 30, 2022, the U.S.

In Sanofi-Aventis U.S. LLC v. Mallinckrodt PLC,¹ the United States District Court for the District of Delaware ruled that a debtor that purchased intellectual property under a prepetition asset purchase agreement could continue to retain and use the property post-confirmation while discharging its obligations to pay any future royalties otherwise owed. The decision highlights the importance of structuring transactions up-front to minimize the consequences of future bankruptcies.

Background

On September 8, 2022, a three-judge panel in the United States Court of Appeals for the Second Circuit (the “Second Circuit”) reversed the United States District Court for the Southern District of New York (the “District Court”) when it determined that lenders of a syndicated loan facility to Revlon, Inc.

In Matter of J.C. Penney Direct Marketing Services, L.L.C.,¹ the United States Fifth Circuit Court of Appeals clarified the extremely deferential standard afforded to a debtor’s “business judgment” decision to reject an unexpired lease under section 365 of the Bankruptcy Code and affirmed the Bankruptcy Court’s ruling allowing rejection of a ground lease notwithstanding allegations of a debtor-sublessor’s bad faith dealings in its negotiations with a sublessee.

Background

A comprehensive review has begun into the effectiveness of Australia’s corporate insolvency laws in protecting and maximising value for the benefit of all interested parties and the economy. Undertaken by the Federal Government’s Parliamentary Joint Committee on Corporations and Financial Services, the review is seeking submissions by 30 November 2022.

On July 29, 2022, Laurie S.

The Supreme Court of the United States granted certiorari on June 27, 2022, to determine whether section 363(m) of the Bankruptcy Code—concerning appellate review of bankruptcy court sale orders—is jurisdictional or only limits the remedy an appellate court may fashion. This issue has split the circuit courts of appeals. The case is set for oral argument in the October 2022 term.

Proving a transaction was to defeat creditors might be easier, but recovering assets under section 588FF of the Corporations Act which are not specifically part of the impugned transaction remains a challenge.

Property claims, especially lien claims, are common in the current environment of supply chain disruption and delay. Most contractual, statutory and common law lien claims, including where the Personal Property Securities Act 2009 (Cth) is involved, will turn on timing, scope and quantum arguments. In this article, we outline the usual levers in a lien dispute from the debtor and creditor perspectives and make some suggestions for getting to a commercial resolution.

Where the key asset of a technology start up is a potential entitlement to an R&D tax refund, the Spitfire decision provides important clarity for financiers of such businesses, as well as for liquidators (and employees) of those businesses which fail.