The sudden and spectacular failure of three regional banks within a week has pushed all other business stories off the front pages and has financial markets anxiously asking where the fallout stops. As unique as the underlying causes of each failure were, at their core these were all good old-fashioned bank runs triggered by liquidity issues.
Delaware Judge Brendan Shannon has joined calls for reforming Section 546(e) of the bankruptcy code, echoing concerns that the section’s safe harbor from fraudulent transfer liability has allowed investors to “loot privately held companies to the detriment of their non-insider creditors with effective impunity.”[1]
Introduction
Section 365(n) of the United States Bankruptcy Code (11 U.S.C. Title 11) protects the rights of intellectual property (IP) non-debtor licensees. Section 365 of the Bankruptcy Code allows a debtor –in-possession, or a trustee (e.g., a software vendor) to: (a) assume, (b) assign, or (c) reject certain executory contracts – which would typically include software licenses. A debtor in possession’s decision to assume, assign, or reject an executory contract is subject to court approval, certain deadlines and other requirements detain Section 365 of the Bankruptcy Code.
In a decision that once again evidences the Fifth Circuit’s strong stance on the finality of asset sales in bankruptcy absent a stay of the applicable order, on March 8, 2023 the United States District Court for the Southern District of Texas published a memorandum opinion and order affirming a bankruptcy court’s exercise of Bankruptcy Code provisions to strip subrogation rights of certain sureties (the “Sureties”) against an asset purchaser.
上市公司重整是重整领域的风向标，由于其衔接了资本市场和破产制度两大重要领域，且上市公司具有公众性、公开性和稀缺性等特点，因此受到了广泛的关注，可谓是重整皇冠上的一颗明珠。自《中华人民共和国企业破产法》实施至今，共计103家上市公司实施了重整，其中最近四年的重整案例数量占据了总量的半壁江山并呈现出新的特点，同时亦产生诸多前沿法律问题并在一定程度上推动了现行重整制度和证券监管政策的变革和调整。
一、近年上市公司重整所呈现的特点
1. 顶层政策明确支持。2020年，国务院在《关于进一步提高上市公司质量的意见》中，明确提出“支持上市公司通过并购重组、破产重整等方式出清风险”。在实务中，近年来证监会对上市公司重整受理的审查政策适度宽松。主要表现在证监会对于上市公司违规担保、资金占用等问题，有条件地允许其在重整程序之中解决，而此前证监会原则上要求上市公司在进入重整前解决此类问题，致使很多存在违规问题的上市公司对重整脱困之路只能“望洋兴叹”。
Facts
Insolvency Act 2003
Comment
In the Three Arrows case,(1) the BVI Court has endorsed what is believed to be its first extra-territorial order summoning directors of a BVI company (in liquidation) to appear for private examination by joint liquidators.
FTX. Blockfi. Voyager. Celsius Network. Genesis. Silvergate Capital Corp. Whether due to alleged corporate fraud or the waterfall effect of a downward spiraling industry, as the past year has unfolded more and more cryptocurrency giants—previously touted by pundits and celebrities as sound new age investments—have filed for relief under the United States Bankruptcy Code.
Small business owners commonly guaranty certain obligations of their businesses. This stages a potential domino effect if the business is unable to satisfy its obligations. A failed business triggers a creditor to pursue the personal guaranty of the business owner, which can cause the business owner to file a bankruptcy petition if they do not have the ability to satisfy the guaranty. In those scenarios, the guaranty liability is a primary cause of the business owner’s bankruptcy and discharging that guaranty liability is the primary goal.