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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
    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
    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
    Delaware Bankruptcy Court Diverges from Fifth Circuit: Minority Shareholder’s Blocking Right Invalidated and Fiduciary Duty Imposed
    2020-06-04

    In a recent bench ruling, the Delaware bankruptcy court denied a motion to dismiss a chapter 11 bankruptcy filing, notwithstanding the fact that the filing contravened an express bankruptcy-filing blocking right, or “golden share,” held by certain preferred shareholders.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Dechert LLP, Corporate governance, Coronavirus
    Authors:
    Shmuel Vasser
    Location:
    USA
    Firm:
    Dechert LLP
    Right to Participate in Backstop is not on Account of a Pre-Petition Claim
    2019-09-05

    Background

    Following various disputes as to the scope of the collateral given to secured creditors, the debtors and certain of their noteholders jointly proposed a chapter 11. The plan included a rights offering that the consenting noteholders agreed to backstop. These consenting noteholders were granted the right to purchase significant equity of the reorganized debtors at a discount and receive significant premiums for their agreement to backstop the rights offering and support the plan.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Dechert LLP, Eighth Circuit, United States bankruptcy court, U.S. Court of Appeals
    Authors:
    Shmuel Vasser
    Location:
    USA
    Firm:
    Dechert LLP
    Raising the Bar for Bad Faith, the Ninth Circuit Reverses Votes Designation
    2018-07-12

    The Ninth Circuit reversed and remanded an Oregon bankruptcy court’s order designating recently acquired claims of a secured creditor for bad faith, holding that a bad faith finding requires “something more.” Specifically, the Court found that a bankruptcy court may not designate claims for bad faith simply because (1) a creditor offers to purchase only a subset of available claims in order to block a plan of reorganization, and/or (2) blocking the plan will adversely impact the remaining creditors.Pacific Western Bank, et al. v.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Dechert LLP, Secured creditor, Ninth Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Dechert LLP

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