Since Marblegate was decided in 2014, the only court to address claims under §316(b) of the Trust Indenture Act (“TIA”) in the context of a corporate restructuring transaction is

Section 1104(a)(2) of the Bankruptcy Code provides for the appointment of a chapter 11 trustee “if such appointment is in the interests of the creditors, any equity security holders, and other interests of the estate . . . .” While it is not often that we see a court displace management pursuant to section 1104(a)(2), it does happen on occasion. One such recent case is In re China Fishery Group Limited. Case No. 16-11895 (Bankr. S.D.N.Y. Oct. 28. 2016), where Judge James L. Garrity, Jr.

In early November, the Ninth Circuit held in In re New Investments, Inc. that a debtor was required to “cure” defaults to an agreement using a post-default interest rate, overturning its prior, decades-old decision In re Entz-White Lumber & Supply, Inc., which had held that a debtor could cure agreements at pre-default interest rates.

Background

On 22 November 2016, the European Commission announced a draft directive on insolvency, restructuring and second chance in the EU in the form of the EU Business Restructuring Directive (the “Proposed Directive“) which can be read here.

Hoku, a publicly-owned Delaware corporation, filed for bankruptcy with just $8 million in assets compared to a relatively staggering $1.3 billion in liabilities, much of which was funded debt. In light of this significant insolvency, Hoku’s chapter 7 trustee brought various breach of fiduciary claims against Hoku’s board of directors, including one akin to a claim for “deepening insolvency.” As the case of Hopkins v.

The High Court in London handed down judgment on Part C of the Lehman Waterfall II Application on 5 October 2016.

The judgment examines the extent of creditors’ entitlements to Default Rate interest on debts arising under ISDA Master Agreements governed by English law and New York law. As some £4.4 billion of LBIE’s admitted claims arise under ISDA Master Agreements and the debts were outstanding for more than five years, this judgment will materially influence the amount of money which must be applied in satisfaction of creditors’ entitlements to statutory interest.

In Through the Looking Glass, Lewis Carroll’s sequel to Alice’s Adventures in Wonderland, there is a famous exchange between Humpty Dumpty and Alice regarding the meaning of words. Toward the end of that dialogue, Alice asked Humpty Dumpty what he meant by the word “impenetrability.” Humpty Dumpty’s response was to not only give the word a meaning that would not be found in any dictionary, but to also expand the meaning he gave the word so that it required affirmative action on Alice’s part.

On August 3, 2016, Delaware Trust Company, as trustee for the EFIH first lien notes, filed a petition for certiorari with the United States Supreme Court, asking the Court to review the Energy Future Holding debtors’ settlement with the EFIH first lien noteholders.

The Bankruptcy Court for the District of Delaware recently faced a question of first impression: whether an allowed postpetition administrative expense claim can be used to set off preference liability. In concluding that it can, the court took a closer look at the nature of a preference claim.

Facts and Arguments

We’ve previously commented on this blog on a number of decisions (see: (i) Too Little, Too Late: Ninth Circuit Holds Confirmation Objection Insufficient to Revive Untimely Complaint Objecting to Dischargeability of Debt, (ii)