We hope you are emerging from your sugar coma and ready for some easy to digest morsels of the Weil Bankruptcy Blog.  With this entry, we summarize the blog entries from the second half of October. 

In a Twist, Court Finds That Junior Stakeholders Violated Their Implied Duties Under an Indenture

Judge Drain has now issued a long-awaited Order on Remand from the Second Circuit’s decision in Momentive Performance Materials determining the appropriate cramdown interest rate applicable to replacement notes issued by Momentive.

Fans of Star Trek: The Next Generation will well-remember that a constant threat to the crew of the Starship Enterprise was The Borg, a multi-species civilization that operated as a collective consciousness, with all individuality extinguished. When confronting any other civilization, The Borg Collective always announced: “We are the Borg. Your biological and technological distinctiveness will be added to our own. Resistance is futile.”

It has long been the case that secured creditors could be charged for the reasonable and necessary costs incurred to preserve the value of their collateral.  This equitable principle emerges out of case law that predates not only the current Bankruptcy Code, but also its immediate predecessor, the Bankruptcy Act of 1938.  As now codified in section 50

RESTRUCTURING FOCUS ON 2019

JANUARY 2019

RESTRUCTURING: FOCUS ON 2019

CONTENTS

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VIEW FROM THE TOP NEW MONEY CONSIDERATIONS SOMETHING FOR ALL INVESTORS? THE INTERCREDITOR MINEFIELD LESSONS FROM CLAIRE'S STORES GOVERNANCE THE SPECTRUM OF OPTIONS CHAPTER 11 FOR THE UK? BREXIT AND UK INSOLVENCY REFORM EU INSOLVENCY REFORM: A CHANGING LANDSCAPE INDEPENDENT RECOGNITION WEIL CONTACTS

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2 RESTRUCTURING: FOCUS ON 2019

VIEW FROM THE TOP

RESTRUCTURING: FOCUS ON 2019

3

Major legislative changes

Reform of English corporate insolvency framework

The Insolvency Service is reviewing responses to its consultation on significant reforms designed to improve the restructuring tools available to companies. These include:

“Aside from their inconsistency with empirical data, proposals to “reform” the Bankruptcy Code must overcome a more basic reality: The current Code works exceedingly well.”
– LSTA Response

In a recent decision, In re Orexigen Therapeutics, Inc., No. 18-10518 (KG) (Bankr. D. Del. Nov. 13, 2018), Judge Kevin Gross of the United States Bankruptcy Court for the District of Delaware held that the mutuality requirement of section 553 of the Bankruptcy Code must be strictly construed, declining to find mutuality in a triangular setoff between the debtor, a parent entity that owed the debtor money, and that entity’s subsidiary, which was a creditor.

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.

The High Court in London gave judgment on parts A and B of the Lehman Waterfall II Application on 31 July 2015.  The application is part of the ongoing dispute as to the distribution of the estimated surplus of more than £7 billion in the main Lehman operating company in Europe, Lehman Brothers International (Europe) (LBIE).