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    The dog that didn't bark - Second Circuit's opinion in DBSD North America disallows gifting, but is silent on cramdown of secured creditor
    2011-03-02

    As discussed in previous posts on this site, back in December the Second Circuit Court of Appeals issued a summary order that reversed the bankruptcy court’s confirmation of the reorganization plan (the “Plan”) of DBSD North America, f/k/a ICO North America (“DBSD”).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Kelley Drye & Warren LLP, Bankruptcy, Debtor, Unsecured debt, Collateral (finance), Security (finance), Interest, Market liquidity, Debt, Bad faith, Secured creditor, Unsecured creditor, Secured loan, Dish Network, Second Circuit, United States bankruptcy court
    Authors:
    Benjamin D. Feder
    Location:
    USA
    Firm:
    Kelley Drye & Warren LLP
    Commercial relationship did not create a § 523(a)(4) fiduciary
    2011-02-16

    FOLLETT HIGHER EDUCATION GROUP v. BERMAN (January 21, 2011)

    Filed under:
    USA, Illinois, Insolvency & Restructuring, Litigation, Kelley Drye & Warren LLP, Bankruptcy, Shareholder, Debtor, Fiduciary, Advertising, Board of directors, Debt, Brokerage firm, Bankruptcy discharge, United States bankruptcy court, Seventh Circuit
    Location:
    USA
    Firm:
    Kelley Drye & Warren LLP
    Second Circuit affirms unfavorable plan treatment of senior secured creditor in DBSD North America
    2010-12-10

    The Second Circuit Court of Appeals issued a summary order this week upholding the aggressively unfavorable treatment of a senior secured creditor under the reorganization plan (the “Plan”) of DBSD North America, f/k/a ICO North America (“DBSD”).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Kelley Drye & Warren LLP, Bankruptcy, Collateral (finance), Security (finance), Interest, Market liquidity, Debt, Good faith, Voting, Secured creditor, Unsecured creditor, Title 11 of the US Code, Second Circuit, United States bankruptcy court
    Authors:
    Benjamin D. Feder
    Location:
    USA
    Firm:
    Kelley Drye & Warren LLP
    Court tosses life vest toTrico Marine Services
    2010-11-18

    Some legal commentators have lamented the extent to which lenders have been able to use debtor in possession (“DIP”) financing arrangements to gain control over an entire Chapter 11 case.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Kelley Drye & Warren LLP, Debtor, Collateral (finance), Market liquidity, Debt, Default (finance), Debtor in possession, Leverage (finance), United States bankruptcy court, US District Court for District of Delaware
    Authors:
    Benjamin D. Feder
    Location:
    USA
    Firm:
    Kelley Drye & Warren LLP
    No abuse of discretion in refusing to reopen bankruptcy proceedings after four years
    2010-10-22

    REDMOND v. FIFTH THIRD BANK (October 20, 2010)

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Kelley Drye & Warren LLP, Bankruptcy, Debt, Mortgage loan, Foreclosure, Standard of review, Remand (court procedure), Default (finance), Prejudice, United States bankruptcy court
    Location:
    USA
    Firm:
    Kelley Drye & Warren LLP
    Acquiring distressed companies
    2010-08-19

    Key Points: An administrator of a deed of company arrangement has been allowed to sell the company over a shareholder's objections.

    The GFC has seen a significant rise in the number of corporate insolvencies.[1]

    Many of those insolvencies have been the result of tighter credit, rather than a collapse of the company's business. It's no surprise, therefore, that there is a major appetite for the acquisition of distressed businesses and companies.

    Filed under:
    Australia, Insolvency & Restructuring, Clayton Utz, Share (finance), Shareholder, Credit (finance), Debt, Deed, Liquidation, Prejudice, Corporations Act 2001 (Australia)
    Authors:
    David Landy
    Location:
    Australia
    Firm:
    Clayton Utz
    How far can a creditor push a distressed company?
    2010-03-31

    The law of "shadow directors" means that a person who effectively controls a board of a company, even though that person is not a director, may find himself being legally classified as a director of the company. That carries with it the threat of legal liability for the company's insolvent trading debts in the event that the company goes into liquidation.

    Filed under:
    Australia, New South Wales, Company & Commercial, Insolvency & Restructuring, Litigation, Clayton Utz, Board of directors, Debt, Liquidation, Liquidator (law), Apple Inc
    Location:
    Australia
    Firm:
    Clayton Utz
    A class of their own? Class constitution in schemes of arrangement
    2017-10-16

    The Boart Longyear decisions confirm that class constitution remains a critical issue for review when pursuing creditors' schemes of arrangement.

    The New South Wales Court of Appeal has recently confirmed the circumstances in which companies seeking approval of schemes of arrangement will be required to convene separate meetings for different classes of creditors.

    Class constitution: key principles

    Filed under:
    Australia, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Clayton Utz, Unsecured debt, Debt, Secured creditor, Corporations Act 2001 (Australia), New South Wales Court of Appeal
    Authors:
    Timothy Sackar , Jillian Robertson
    Location:
    Australia
    Firm:
    Clayton Utz
    Trust companies in liquidation - dealing with priority debts
    2016-07-12

    The decision in In the matter of Independent Contractor Services (Aust) could mean more reliance upon fair entitlements guarantee funding provided by the Commonwealth in relation to the liquidation of trading trusts.

    Filed under:
    Australia, New South Wales, Insolvency & Restructuring, Litigation, Clayton Utz, Costs in English law, Audit, Beneficiary, Debt, Withholding tax, Liquidation, Liquidator (law), Discretionary trust, Corporations Act 2001 (Australia), Australian Taxation Office, New South Wales Supreme Court , Trustee
    Authors:
    Mikhail Glavac , Orla McCoy
    Location:
    Australia
    Firm:
    Clayton Utz
    Does a DOCA release a company from a debt arising under a guarantee?
    2015-08-06

    Key Points:

    A DOCA can extinguish claims under a guarantee, even where those claims arise following the DOCA's termination.

    If the underlying debt has already been extinguished by a DOCA, can a secured creditor still enforce the charge? A recent case explored the role of section 444D(2) of the Corporations Act in this situation, with implications for parties seeking to rely on guarantees from companies that have been through a DOCA (Australian Gypsum Industries Pty Ltd v Dalesun Holdings Pty Ltd [2015] WASCA 95).

    Filed under:
    Australia, Banking, Insolvency & Restructuring, Litigation, Clayton Utz, Debt, Secured creditor
    Authors:
    Nick Poole , Peter Bowden
    Location:
    Australia
    Firm:
    Clayton Utz

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