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    Texas Bankruptcy Court Blesses Serta Chapter 11 Plan Over Objections of Lenders Excluded from "Position Enhancement Transaction"
    2023-09-30

    On June 6, 2023, the U.S. Bankruptcy Court for the Southern District of Texas confirmed the chapter 11 plan of bedding manufacturer Serta Simmons Bedding, LLC and its affiliates (collectively, "Serta"). In confirming Serta's plan, the court held that a 2020 "uptier," or "position enhancement," transaction (the "2020 Transaction") whereby Serta issued new debt secured by a priming lien on its assets and purchased its existing debt from participating lenders at a discount with a portion of the proceeds did not violate the terms of Serta's 2016 credit agreement.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day
    Authors:
    Oliver S. Zeltner , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Court's Broad Interpretation of Definition of "Securities Contracts" Promotes Expansive Scope of Bankruptcy Code "Safe Harbor"
    2023-09-30

    Section 546(e) of the Bankruptcy Code's "safe harbor" preventing avoidance in bankruptcy of certain securities, commodity, or forward-contract payments has long been a magnet for controversy. Several noteworthy court rulings have been issued in bankruptcy cases addressing the application of the provision, including application to financial institutions, its preemptive scope, and its application to non-publicly traded securities.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, Jones Day, Private equity, Supreme Court of the United States
    Authors:
    Daniel J. Merrett (Dan) , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Circuit Split Widens on Extent of Abrogation of Sovereign Immunity for Governmental Units in Bankruptcy Avoidance Litigation
    2023-09-30

    Bankruptcy trustees and chapter 11 debtors-in-possession ("DIPs") frequently seek to avoid fraudulent transfers and obligations under section 544(b) of the Bankruptcy Code and state fraudulent transfer or other applicable nonbankruptcy laws because the statutory "look-back" period for avoidance under many nonbankruptcy laws exceeds the two-year period governing avoidance actions under section 548.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Tax, Jones Day, Internal Revenue Service (USA), Federal Deposit Insurance Corporation (USA), US Congress, Internal Revenue Code (USA), Supreme Court of the United States
    Authors:
    Dan B. Prieto , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Individual Subchapter V Debtor’s Liquidating Plan: Can Discharge Be Denied Under § 1141(d)(3)? (In re Lucido)
    2023-09-28

    Here’s a Bankruptcy Court opinion addressing a no-discharge claim under § 1141(d)(3) against an individual debtor who proposes a liquidating Subchapter V plan:

    • RGW Construction, Inc. v. Lucido (In re Lucido), Adv. No. 21-4031, Northern California Bankruptcy Court (issued 9/13/2023, Doc. 113).

    The Issue

    Filed under:
    USA, Nebraska, Insolvency & Restructuring, Litigation, Koley Jessen PC
    Authors:
    Donald L. Swanson
    Location:
    USA
    Firm:
    Koley Jessen PC
    Mid 2023 Delaware Corporate and M&A Law Update
    2023-09-28

    Over the past few months, Delaware courts have continued to address important M&A and corporate issues. Significant corporate law developments have also arisen from state and federal courts in California. Below are some highlights and practical takeaways related to important developments in Delaware law.

    CORPORATE

    Advance Notice Bylaws and Board Action Affecting the Stockholder Franchise.

    Filed under:
    USA, Delaware, Arbitration & ADR, Company & Commercial, Compliance Management, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Greenberg Traurig LLP, Delaware Court of Chancery
    Location:
    USA
    Firm:
    Greenberg Traurig LLP
    Director of insolvent company unable to challenge company’s PAYG liability
    2023-09-28

    In this week’s TGIF, we examine the recent case of Mandalinic v Stone (Liquidator) [2023] FCAFC 146 which provides useful guidance as to the ability of a director to challenge an insolvent company’s PAYG liability.

    Key takeaways

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Litigation, Corrs Chambers Westgarth
    Authors:
    Michael Kimmins , Daniel Byrne
    Location:
    Australia
    Firm:
    Corrs Chambers Westgarth
    Orienteering Change: Navigating Restructuring Under the New Cayman Islands Regime
    2023-09-29

    A version of this was first published in INSOL I-Read Student Newsletter, Issue 9, September 2023, and is republished with kind permission of INSOL International.

    After a substantial industry consultation process, the Cayman Islands introduced the concept of Court-appointed restructuring officers into Part V of the Cayman Islands Companies Act (the “Companies Act”) with effect from 31 August 2022.

    Filed under:
    Cayman Islands, Insolvency & Restructuring, Litigation, Conyers
    Authors:
    Jordan McErlean
    Location:
    Cayman Islands
    Firm:
    Conyers
    ERGO Analysing Development Impacting Business: IBBI Amends the CIRP Regulations to Streamline the Insolvency Process
    2023-09-29

    Introduction

    The Insolvency and Bankruptcy Board of India (IBBI) on 18 September 2023 notified the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) (Second Amendment) Regulations, 2023 (CIRP Amendment Regulations) amending the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (CIRP Regulations).

    The key changes brought about by the CIRP Amendment Regulations are as follows:

    Filed under:
    India, Insolvency & Restructuring, Litigation, Khaitan & Co, Insolvency and Bankruptcy Board of India, Insolvency and Bankruptcy Code (India)
    Authors:
    Siddharth Srivastava , Mohit Kishore , Shikha Mohini
    Location:
    India
    Firm:
    Khaitan & Co
    Sonderkündigungsrecht nach § 111 InsO bei Erwerb von Anteilen an Immobiliengesellschaft?
    2023-09-27

    Hat ein Erwerber von Geschäftsanteilen an einer Immobiliengesellschaft ein Sonderkündigungsrecht für bestehende Miet- oder Pachtverhältnisse?

    Filed under:
    European Union, Germany, Insolvency & Restructuring, Litigation, Real Estate, CMS Germany
    Authors:
    Rolf Leithaus , Julia Menke
    Location:
    European Union, Germany
    Firm:
    CMS Germany
    Building with confidence: insolvency-related considerations for principals in building contracts
    2023-09-27

    The current market conditions of the construction and project development sector may prompt extra attention to insolvency-related safeguards in building contracts with (sub)contractors. Aiming to mitigate insolvency risks as much as possible, in this blog we discuss a few key considerations for principals to take into account when entering into building contracts with (sub)contractors.

    Building with confidence: insolvency-related considerations for principals in building contracts

    Filed under:
    Netherlands, Insolvency & Restructuring, Real Estate, Loyens & Loeff
    Authors:
    Timo Huisman , Sophie Brandse
    Location:
    Netherlands
    Firm:
    Loyens & Loeff

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