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    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
    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
    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
    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
    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
    Does Section 546(e) Bar Foreign Law Avoidance Actions in Chapter 15?
    2021-05-10

    Turns out, it depends on who you ask. Judge Bernstein said no. Recently, Judge Glenn said yes, but only for causes of action that resemble actual fraudulent transfers. It is unusual for the bankruptcy judges in Manhattan to disagree with each other, so let’s take a look at the issue.

    Background

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Dechert LLP
    Authors:
    Shmuel Vasser
    Location:
    USA
    Firm:
    Dechert LLP
    Are Critical Vendors Insulated from Preference Actions?
    2020-06-09

    No, says the Delaware Bankruptcy Court in In re Maxus Energy Corp. In Maxus, the defendant, Vista Analytical Laboratory, Inc. (“Vista” or the “Defendant”), a designated critical vendor, sought summary judgement dismissing the preference complaint. The Court denied summary judgement finding that the critical vendor status did not per se insulate Vista from preference actions.

    Background

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Dechert LLP, Title 11 of the US Code
    Authors:
    Shmuel Vasser
    Location:
    USA
    Firm:
    Dechert LLP
    Do Bankruptcy Courts Have Constitutional Authority to Approve Nonconsensual, Third-Party Releases?
    2020-01-14

    Yes, says the Third Circuit. The Third Circuit recently held that the Bankruptcy Court has the authority to confirm a chapter 11 plan which contains nonconsensual, third-party releases when such releases are integral to the successful reorganization. The court’s decision in In re Millennium holds that, when the third-party releases are integral to the restructuring of the debtor-creditor relationship, the Bankruptcy Court has the constitutional authority to approve nonconsensual, third-party releases.

    Background

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Dechert LLP, Medicare, Medicaid, US Department of Justice, Third Circuit
    Authors:
    Shmuel Vasser , Cara Kaplan
    Location:
    USA
    Firm:
    Dechert LLP
    English Court of Appeal Refuses to Give Effect to Foreign Restructuring
    2018-12-24

    In a decision widely anticipated by investors in emerging market and distressed debt, the Court of Appeal has upheld the decision of the High Court to refuse to grant an indefinite moratorium on claims under certain English law debts under the Cross Border Insolvency Rules (“CBIR”). In doing so, the Court of Appeal has reaffirmed a long-standing principle of English common law that provides important protection to creditors; known as the Rule in Gibbs, the rule provides that a debt may only be discharged according to its own governing law.

    Filed under:
    European Union, United Kingdom, Insolvency & Restructuring, Litigation, Public, Dechert LLP, Brexit, Liquidation
    Authors:
    Adam Silver
    Location:
    European Union, United Kingdom
    Firm:
    Dechert LLP
    Millennium Lab Part II: Delaware Bankruptcy Court Dispels Shadow Over Non-Consensual Third-Party Releases (For Now)
    2017-10-24

    In trotting a path out of Chapter 11, debtors in most cases will need to engage various key stakeholders, some of whom are not entitled to a distribution in the bankruptcy. As a form of remuneration, non-debtors may insist on receiving a release of liability - not only from claims belonging to the debtor, but also the claims of third-parties - in exchange for their support and contribution to the case.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Dechert LLP, Bankruptcy, Debtor, United States bankruptcy court
    Location:
    USA
    Firm:
    Dechert LLP

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