Firm Posts
Our latest briefing compares recent developments in the APAC restructuring market with those in the UK. Despite APAC's and the UK's divergent monetary policy and growth forecasts, we find that restructuring markets in both regions are seeing very similar themes:
The perspective of a landlord
In brief
A tenant's insolvency hits landlords particularly hard. Existing rental securities (e.g., rent deposit, landlord's lien) cannot always cushion the loss of rent and operating costs. Especially in times of the current energy crisis and rising costs, this issue is becoming increasingly explosive. This is demonstrated by the numerous insolvencies in the fashion retail sector, such as Galeria, Peek & Cloppenburg, KaDeWe and Esprit. High rents are often of the main reasons for insolvency.
In a much-anticipated decision, the United States Court of Appeals for the Third Circuit recently held that unsecured noteholders’ claims against a debtor for certain “Applicable Premiums” were the “economic equivalent” to unmatured interest and, therefore, not recoverable under section 502(b)(2) of the Bankruptcy Code.
On September 12, 2024, the United States Court of Appeals for the Eighth Circuit reversed a trial court decision that had rejected a bank’s assertion of the in pari delicto defense to aiding and abetting claims brought by the bankruptcy trustee for a debtor that had allegedly perpetrated a Ponzi scheme. Kelley v. BMO Harris Bank Nat’l Ass’n, 2024 WL 4158179 (8th Cir. Sept. 12, 2024).
Whether it's gone completely flat or simply reached its maturity, one thing is abundantly clear: The Minneapolis-St. Paul craft beer industry took a turn for the worst in this past year. Multiple, well-known establishments called it quits, including the Eastlake Craft Brewery and Clutch Brewing. Others, like Fair State Brewing Cooperative, recently filed for bankruptcy to reset their financial liabilities and attempt to survive in the new marketplace. Multiple others teeter on the precipice of financial disaster.
On July 23, 2024, the finance minister presented a budget focused on job creation, tax reforms, and support for micro, small and medium enterprises (“MSMEs”). For the Insolvency and Bankruptcy Code, 2016 (“IBC”) two reforms were announced: the establishment of an integrated technology platform to facilitate improved outcomes and the strengthening of tribunals and appellate tribunals, including the creation of additional tribunals some of which would be exclusively designated for matters under the Companies Act, 2013.
As most readers know, Subchapter V of Chapter 11 is the small business reorganization provisions enacted in the Small Business Reorganization Act (SBRA) of 2019. SBRA made major changes to how small business cases are handled in an effort to streamline the process, reduce administrative expenses and result in more confirmed Chapter 11 plans. Prior to SBRA and even continuing after enactment of SBRA, small businesses could elect treatment as a small business debtor under Chapter 11.
The US Court of Appeals for the Third Circuit on September 10, 2024 issued its anticipated opinion in In re The Hertz Corp., with a majority holding that make-whole premiums constitute unmatured interest disallowed by the US Bankruptcy Code, but also finding that solvent debtors must pay creditors their full claims as dictated by contract, including make-whole and post-petition interest, before distributions can be made to equity.
Chart Comparing Exemptions
The specific bankruptcy and nonbankruptcy (Minnesota law and nonbankruptcy federal law) exemptions vary in scope and dollar amount. The following table summarizes and compares the two sets of exemptions. The statutory language of the exemption has been paraphrased in this chart. The actual statutory language as well as case law must be reviewed when analyzing a debtor’s claim for a particular exemption.
Revised August 2024
I’m serving on a Drafting Committee of the Uniform Law Commission for a uniform law on assignment for benefit of creditors (“ABC”). A draft of such a uniform law is coming together, with lots of input from many people and organizations. But we are always looking for more input. So, if you’d like to participate in the drafting process, let me know.