Businesses considering filing Chapter 11 for bankruptcy protection may not necessarily be able to avoid certain environmental cleanup obligations. The underlying policy goals of bankruptcy and environmental laws are in direct conflict in that bankruptcy law seeks to promote financial rehabilitation by discharging a debtor's past obligations in order to promote financial rehabilitation while environmental law seeks to ensure that the government can order responsible parties to clean up contamination, including historical pollution caused by business predecessors.
On June 21, 2011, the Fifth Circuit Court of Appeals ruled in In re Evans Industries, Inc., that a purchaser of assets from a bankrupt company cannot make a claim against a holdback escrow account for expenses incurred while cleaning up hazardous waste that the bankrupt company left behind. Pursuant to an asset purchase agreement, Grief Industrial Packaging and Services purchased five facilities from Evans Industries, Incorporated.
B&D is pleased to present the next installment of our 2024 Litigation Look Ahead series. (Read part four covering Fifth Amendment takings cases here).
Key points
THE BRIEF
FINANCIAL SERVICES LITIGATION QUARTERLY
FALL 2023
1
TABLE OF CONTENTS
Were There Underwriting Requirements for PPP Loans After All? The Sound-Value Requirement May Pose Risk for PPP Lenders
3
Noteworthy10
District Court Upholds New ERISA Rules on ESG Investing
10
Fourth Circuit Holds That Class-Action Waivers Must Be Addressed Before Class Certification
12
Ninth Circuit: Fees for Claims-Made Settlements Must Be Based on Actual Recovery
13
In May I wrote about a manufacturer of Aqueous Film Forming Foam (AFFF) excused from the PFAS Multi-District Litigation in South Carolina because its PFAS-related liabilities might exceed its assets which is something for a Federal Bankruptcy Court to sort out. At the time I worried that this was only one of many PFAS-related bankruptcies we would be seeing
Companies are under increasing pressure to examine their ESG policies, particularly after the recent COP26 conference. The UK's commitment to achieving net-zero emissions by 2050 has intensified the ESG focus.
What is ESG?
ESG, or Environmental, Social and Corporate Governance, is a term used to describe a set of standards that measures a business' environmental and social impact.
Why is ESG important in a distressed restructuring?
Close economic ties and interdependence between the US and Canada have been bolstered by free trade policies and intensified global competition, paving the way for continued opportunities for US businesses to tap into the Canadian market. These opportunities have resulted in an active cross-border lending market. In light of this, US lenders who are lending into Canada may encounter, and should be aware of, Canadian-specific legal issues and considerations.
As the economic headwinds indicate that borrowers will continue to face financial pressures in 2023 and beyond, lenders are seeking ways to exercise more leverage as “covenant-lite” facilities prevail. Material adverse change clauses in finance documents UK and US perspective By Olga Galazoula, Jacques McChesney and Charlotte Harvey 4 FUNDS INSIDER FUNDS INSIDER 5 The event relied upon by the lender to enforce this clause was the making of an arbitration award that could potentially result in significant damages being awarded against the borrower.
La 13e édition annuelle de la publication Mining in the Courts fournit une mise à jour complète sur les développements juridiques concernant le secteur minier (disponible en anglais seulement). Cette publication comprend un résumé sur bon nombre des causes les plus importantes, ainsi que des articles offrant un aperçu sur les tendances juridiques actuelles et les défis auxquels l’industrie devra faire face au cours de la prochaine année.
Voici certains des sujets qui y sont abordés :