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    Financial support directions and insolvency part 2 - the Court of Appeal
    2011-10-18

    As you may recall, the High Court ruled in December 2010, in a case brought by the administrators of 20 insolvent companies in the Lehman and Nortel groups, that the cost of complying with a financial support direction ("FSD"), issued by the Pensions Regulator after the date of the commencement of a company's administration or liquidation, would rank as an expense of the administration or liquidation.

    Filed under:
    United Kingdom, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Reed Smith LLP, Unsecured debt, Debt, Liability (financial accounting), Liquidation, The Pensions Regulator (UK), Lehman Brothers, Pensions Act 2004 (UK), Court of Appeal of England & Wales, High Court of Justice (England & Wales)
    Authors:
    Emma J. Flacks , Marc Bergen
    Location:
    United Kingdom
    Firm:
    Reed Smith LLP
    Removal of administrators - 'in Finnerty...and beyond'
    2011-10-19

    In Finnerty v Clark, the Court of Appeal has given guidance on what constitutes "good and sufficient" grounds for the removal of administrators. In this case, shareholders of a company in administration were also substantial creditors of the company. They wished the administrators to raise proceedings under Section 244 of the Insolvency Act 1986 (extortionate credit transactions) to challenge loan agreements that had been entered into by the company prior to administration.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, MacRoberts LLP, Shareholder, Stakeholder (corporate), Insolvency Act 1986 (UK), Court of Appeal of England & Wales
    Authors:
    Alan Meek , John Reid
    Location:
    United Kingdom
    Firm:
    MacRoberts LLP
    Court of Appeal confirms 'super priority' protection for pension claims
    2011-10-20

    Recently, the Court of Appeal upheld the High Court's decision in the Nortel Networks and Lehman Brothers disputes. The judgment confirms that liabilities under Financial Support Directions (FSDs) and Contribution Notices (CNs), which are issued by the Pensions Regulator, will rank ahead of almost all other claims when a company becomes insolvent. The discussions in the case focused on whether FSDs and CNs are classed as 'provable debts', expenses of the insolvency or, indeed, neither.

    Filed under:
    United Kingdom, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, MacRoberts LLP, Debt, Liability (financial accounting), Defined benefit pension plan, The Pensions Regulator (UK), House of Lords, Lehman Brothers, Pension Protection Fund, Court of Appeal of England & Wales, High Court of Justice (England & Wales)
    Authors:
    Alan Meek , Martyn Shaw
    Location:
    United Kingdom
    Firm:
    MacRoberts LLP
    Court of Appeal decision in re Nortel
    2011-10-20

    The effect of the CA decision

    Filed under:
    United Kingdom, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Freshfields Bruckhaus Deringer, Court of Appeal of England & Wales
    Location:
    United Kingdom
    Firm:
    Freshfields Bruckhaus Deringer
    Court of Appeal upholds decision that Pensions Regulator’s demands are granted “super-priority” in insolvencies
    2011-10-20

    The Court of Appeal handed down its judgment on 14 October 2011 unanimously upholding the first instance decision that a Financial Support Direction (FSD) issued by the Pensions Regulator to an entity after it has commenced insolvency proceedings will rank as an expense of the administration, therefore affording it super-priority over floating charge holders and other unsecured creditors. This decisions has significant implications for lenders to groups with UK defined benefit pension plans if any of their security is taken as a floating charge.

    Filed under:
    United Kingdom, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Latham & Watkins LLP, Unsecured debt, Debt, Liability (financial accounting), Liquidator (law), Defined benefit pension plan, The Pensions Regulator (UK), Lehman Brothers, Court of Appeal of England & Wales, High Court of Justice (England & Wales)
    Authors:
    Catherine Drinnan , Gretchen Lennon
    Location:
    United Kingdom
    Firm:
    Latham & Watkins LLP
    MF Global enters insolvency proceedings on both sides of the pond
    2011-11-01

    MF Global, one of the world's leading broker/dealer firms entered into insolvency proceedings in both the US and the UK on 31 October 2011. US entities MF Global Holdings Ltd. and MF Global Finance USA Inc. filed voluntary petitions for relief under Chapter 11 of the US Bankruptcy Code in the Bankruptcy Court for the Southern District of New York. Also on 31 October, the US Securities Investor Protection Corporation ("SIPC") initiated the liquidation of MF Global, Inc. a jointly registered futures commission merchant and broker-dealer, under the Securities Investor Protection Act ("SIPA").

    Filed under:
    United Kingdom, USA, Capital Markets, Insolvency & Restructuring, Reed Smith LLP, Bankruptcy, Clearing house (finance), Futures contract, Commodity broker, Margin (finance), Liquidation, Broker-dealer, Capital requirement, Subsidiary, US Securities and Exchange Commission, Securities Investor Protection Corporation, Credit rating agency, FSA, United States bankruptcy court
    Authors:
    Kyri Evagora , Georgia M. Quenby , Brett Hillis , Andrew P. Cross
    Location:
    United Kingdom, USA
    Firm:
    Reed Smith LLP
    UK Special Administration Regime
    2011-11-03

    The UK Financial Services Authority (“FSA”) confirmed on 31 Oct. 2011 that MF Global UK Limited (“MF Global UK”) will be subject to the new Special Administration Regime (“SAR”).[1] This is the first time that the new regime, set out in The Investment Bank Special Administration Regulations 2011 (“SAR Regulations”)[2] has been invoked.

    Background

    Filed under:
    United Kingdom, Banking, Insolvency & Restructuring, Schulte Roth & Zabel LLP, Futures contract, Investment banking, Best practice, Lehman Brothers cases, Pro rata, HM Treasury (UK), International Swaps and Derivatives Association, Lehman Brothers, FSA, Bank of England, National Commission on Fiscal Responsibility and Reform, Banking Act 2009 (UK)
    Authors:
    Ron Feldman , Lawrence V. Gelber
    Location:
    United Kingdom
    Firm:
    Schulte Roth & Zabel LLP
    PE houses and pre-packs - will the Pensions Regulator act?
    2011-10-05

    The story of the restructuring of carpet-maker, Brintons has featured in the press recently, with emphasis on the role of Carlyle, one of the world's biggest private equity firms. The facts are similar to the Silentnight pre-pack which we featured in a previous bulletin. In each case, the Pensions Regulator is said to be considering using its anti-avoidance powers under the Pensions Act 2004 to compel senior debt holders to pay towards the deficit of the defined benefit pension scheme operated by the company.

    Filed under:
    United Kingdom, Corporate Finance/M&A, Employee Benefits & Pensions, Insolvency & Restructuring, Herbert Smith Freehills LLP, Unsecured debt, Private equity, Debt, Investment funds, Defined benefit pension plan, Unsecured creditor, The Pensions Regulator (UK), Pension Protection Fund, Pensions Act 2004 (UK), Trustee
    Authors:
    Ian Gault , Daniel Schaffer , Alison Brown , Roderick Morton , Naveed Soomro
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    Using insolvency processes to investigate fraud
    2011-08-12

    Payless Cash & Carry Limited v Patel and Others [2011]

    The decision of Mr Justice Mann in the High Court in Payless Cash & Carry Limited v Patel and Others [2011] exemplifies the detailed investigation which can be carried out by the appointment of a provisional liquidator or a liquidator in cases of suspected fraud. It also contains some useful comments on the extent of the liquidator’s evidential burden in such cases.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Kennedys Law LLP, Fraud, Value added tax, Legal burden of proof, Witness, Tax return (USA), Liquidator (law), Tobacco products, HM Revenue and Customs (UK), High Court of Justice (England & Wales)
    Authors:
    Steven Fennell
    Location:
    United Kingdom
    Firm:
    Kennedys Law LLP
    Cross-border restructurings using offshore companies
    2011-08-17

    In the current economic climate, there has been increased interest from clients and their advisers in using offshore companies in cross-border restructurings. The use of offshore companies in restructurings is often driven by tax and structuring advice, where there is a desire to continue the group operating as a going concern and to achieve a favourable outcome for creditors (usually outside of formal insolvency proceedings).

    Such companies can offer a number of advantages when used as part of a restructuring plan, including:

    Filed under:
    United Kingdom, Insolvency & Restructuring, Private Client & Offshore Services, Ogier, Share (finance), Bankruptcy, Shareholder, Interest, Option (finance), Capital gains tax, Stamp duty
    Authors:
    Bruce MacNeil
    Location:
    United Kingdom
    Firm:
    Ogier

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