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Third Circuit Finds That Prepetition Option Termination Is Not Transfer
2023-01-09

Under Section 101(54) of the bankruptcy code, any means of disposing with an interest in property is considered a transfer, and therefore, under certain circumstances, may be avoided as a preference or fraudulent transfer. In a recent unpublished opinion, the Third Circuit addressed the scope of the provisions. The Third Circuit recently held that prepetition lease termination did not give rise to a transfer.

Background

Filed under:
USA, Insolvency & Restructuring, Litigation, Dechert LLP
Authors:
Shmuel Vasser
Location:
USA
Firm:
Dechert LLP
View Original Article
Non-Debtor Awarded Sanctions for an Improper Filing of an Involuntary Petition
2022-12-15

Section 303(i) of the Bankruptcy Code authorizes the court to award the debtor sanctions on account of an improper filing of an involuntary petition against it. But can a non-debtor third-party obtain such a relief? Yes, says the Bankruptcy Court In In re Vascular Access Centers, L.P., No. 19-17117 (AMC), 2022 WL 17366463 (Bankr. E.D. Pa. Dec. 1, 2022).

Background

Filed under:
USA, Insolvency & Restructuring, Litigation, Trade & Customs, Dechert LLP, Pennsylvania Supreme Court
Authors:
Shmuel Vasser
Location:
USA
Firm:
Dechert LLP
View Original Article
English court rules that certain ISDA bankruptcy events of default can be cured
2022-11-03

In October 2022, the English High Court delivered a long-awaited judgment1 relating to whether or not certain Bankruptcy Events of Default can be cured under the ISDA 2002 and 1992 Master Agreements ("ISDA Master Agreements") - resolving an issue relating to the suspensory effect of conditions precedent to payments and performance under ISDA Master Agreements raised in the English Court of Appeal earlier in the Lehman administration.

Filed under:
United Kingdom, Derivatives, Insolvency & Restructuring, Litigation, Dechert LLP
Authors:
John McGrath , Kay Morley
Location:
United Kingdom
Firm:
Dechert LLP
View Original Article
The Corporate Insolvency & Governance Act 2020
2022-10-17

As the UK teeters on the brink of what would appear to be an inevitable recession, new restructuring tools introduced in the UK in 2020 pursuant to the Corporate Insolvency & Governance Act 2020 (“CIGA”) will ensure that issuers and other distressed borrowers can execute more creative and aggressive restructuring strategies than were possible during previous market downturns. A brief summary of the new UK restructuring plan is set out below, together with some examples as to how the restructuring plan is being used in practice.

Filed under:
United Kingdom, Company & Commercial, Insolvency & Restructuring, Litigation, Dechert LLP, Insolvency
Authors:
Kay Morley
Location:
United Kingdom
Firm:
Dechert LLP
View Original Article
Sequana: “Momentous” Judgment by Supreme Court on the Creditor Duty
2022-10-11

What is the so-called "creditor duty"?

This is the duty, introduced into English common law by the leading case of West Mercia Safetywear v Dodd1 in 1988, of company directors to consider, or act in accordance with, the interests of the company's creditors when the company becomes insolvent, or when it approaches, or is at real risk of insolvency.

Background

Filed under:
United Kingdom, Company & Commercial, Insolvency & Restructuring, Litigation, Dechert LLP, Insolvency
Authors:
Kay Morley , Tayyibah Arif , Alastair Goldrein , Adam Plainer , Solomon J. Noh
Location:
United Kingdom
Firm:
Dechert LLP
View Original Article
Houst Limited Restructuring Plan: High Court Sanctions SME Restructuring Plan to Cram Down HMRC
2022-08-22

On 22 July 2022, the English High Court sanctioned Houst Limited’s (“Houst” or the “Company”) restructuring plan (the “Restructuring Plan”), which significantly, is the first time a Restructuring Plan has been used to cram down HM Revenue & Customs (“HMRC”) as preferential creditor.1

Background

Filed under:
USA, Insolvency & Restructuring, Tax, Trade & Customs, Dechert LLP, Coronavirus, HM Revenue and Customs (UK)
Authors:
Alastair Goldrein , Solomon J. Noh , Adam Plainer , Eirene Psomas , Kay Morley
Location:
USA
Firm:
Dechert LLP
View Original Article
A Modified Countryman Test for Multi-party Executory Contracts
2022-08-22

In a recent decision, the Court of Appeals for the Fifth Circuit held that an agreement between a debtor, a surety, and third-party beneficiaries was not an executory contract and, thus, was ineligible to pass-through the bankruptcy unaffected. The Fifth Circuit, however, adopted a modified Countryman test for muti-party executory contracts. Matter of Falcon V, L.L.C., 2022 WL 3274174 (5th Cir. 2022).

Background

Filed under:
USA, Insolvency & Restructuring, Litigation, Dechert LLP, Bankruptcy
Authors:
Shmuel Vasser
Location:
USA
Firm:
Dechert LLP
View Original Article
First Circuit Holds that Fifth Amendment Takings Claims Must be Paid in Full
2022-09-08

The U.S. Court of Appeals for the First Circuit recently ruled in the Puerto Rico bankruptcy case that Fifth Amendment takings claims cannot be discharged or impaired by a bankruptcy plan. As a matter of first impression in that circuit, the Court disagreed with the Ninth Circuit and held that former property owners affected by prepetition takings must be paid in full.

In re Fin. Oversight & Mgmt. Bd., 41 F.4th 29 (1st Cir. 2022)

Filed under:
USA, Insolvency & Restructuring, Litigation, Dechert LLP, US Congress, SCOTUS, Ninth Circuit
Authors:
Shmuel Vasser
Location:
USA
Firm:
Dechert LLP
View Original Article
Smile Telecoms Restructuring Plan: Court grants convening application excluding “out of the money” creditor and shareholder classes from voting on the plan
2022-01-12

On 12 January 2022, the English High Court granted Smile Telecoms Holdings Limited’s (“Smile” or the “Company”) application to convene a single meeting of plan creditors (the super senior creditors) to vote on the Company’s proposed restructuring plan (the “Restructuring Plan”). It is the first plan to use section 901C(4) of the Companies Act 2006 (“CA 2006”) to exclude other classes of creditors and shareholders from voting on the Restructuring Plan on the basis that they have no genuine economic interest in the Company. 

Background 

Filed under:
United Kingdom, Company & Commercial, Insolvency & Restructuring, Telecoms, Dechert LLP
Location:
United Kingdom
Firm:
Dechert LLP
View Original Article
Restructuring Plans in European Cross-border Restructurings - One Gate Closes but Another One Opens
2021-03-23

Key Takeaways

Filed under:
European Union, United Kingdom, Insolvency & Restructuring, Dechert LLP, Brexit, Coronavirus
Authors:
Alastair Goldrein , Solomon J. Noh , Adam Plainer
Location:
European Union, United Kingdom
Firm:
Dechert LLP
View Original Article

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