On 25 June 2020, the new Corporate Insolvency and Governance Act (the "Act") received Royal Assent. We anticipate that the changes introduced by the Act will have a significant impact on the future direction of the UK restructuring market.

In In re Tribune Co. Fraudulent Conveyance Litig., 946 F.3d 66 (2d Cir. 2019), the U.S. Court of Appeals for the Second Circuit reaffirmed, notwithstanding the U.S. Supreme Court's ruling in Merit Mgmt. Grp., LP v. FTI Consulting, Inc., 138 S. Ct. 883, 200 L. Ed. 2d 183 (2018), its 2016 decision that creditors' state law fraudulent transfer claims arising from the 2007 leveraged buyout ("LBO") of Tribune Co. ("Tribune") were preempted by the safe harbor for certain securities, commodities, or forward contract payments set forth in section 546(e) of the Bankruptcy Code.

In Short

The Situation: Should liquidators be personally liable for the costs of unsuccessful appeals, without an entitlement to reimbursement by the company or its creditors in relation to those costs?

The Conclusion: The general rule providing a liquidator immunity from personal costs orders and entitling a liquidator to be indemnified from the assets of the company for their own costs, and for the costs of the other party, does not apply when a liquidator initiates an unsuccessful appeal.

In SummitBridge Nat’l Invs. III, LLC v. Faison, 915 F.3d 288 (4th Cir. 2019), the U.S. Court of Appeals for the Fourth Circuit ruled that an unsecured or undersecured creditor may include postpetition attorney’s fees and costs as part of its allowed claim in a bankruptcy case.

Unsecured Creditors and Postpetition Attorney’s Fees and Costs

The Situation On January 17, 2019, the Fifth Circuit strongly suggested that claims for make-whole damages be characterized as "unmatured interest" and that claims for postpetition interest on unsecured debt be limited in bankruptcy proceedings.

The Result The court's decision appears to be one that favors debtors over lenders.

Looking Ahead It is unclear if the court's reasoning will be adopted by other jurisdictions and/or in cases with differing factual and legal grounds.

In the service of the Bankruptcy Code’s goals of giving debtors a "fresh start" and ensuring that estate assets are fairly and equally distributed among similarly situated creditors, the Bankruptcy Code contains an array of advantageous provisions that either do not exist under non-bankruptcy law or are more difficult to deploy. These include, among other things, the ability to reject burdensome contracts, to avoid preferential or fraudulent transfers, and to limit the amount of certain types of creditor claims.

In Clark’s Crystal Springs Ranch, LLC v. Gugino (In re Clark), 692 Fed. Appx. 946, 2017 BL 240043 (9th Cir. July 12, 2017), the U.S. Court of Appeals for the Ninth Circuit ruled that: (i) the remedy of "substantive consolidation" is governed by federal bankruptcy law, not state law; and (ii) because the Bankruptcy Code does not expressly forbid the substantive consolidation of debtors and nondebtors, the U.S. Supreme Court’s decision in Law v. Siegel, 134 S. Ct. 1188 (2014), does not bar bankruptcy courts from ordering the remedy.

In Short

The Situation: In cross-border restructuring cases, court-approved insolvency protocols are applied to facilitate communication between U.S. and foreign courts and standardize certain common procedures. The protocols are sometimes adapted to address case-specific issues.

The Result: Case-specific provisions tend to address information-sharing guidelines, claims reconciliation, the management of assets, and dispute resolution.

Among the required elements of a claim to avoid a preferential transfer under section 547(b) of the Bankruptcy Code is that, if the creditor-transferee were permitted to retain a pre-bankruptcy payment, it would end up being paid more than it would receive in a hypothetical liquidation of the debtor under chapter 7, assuming the transfer did not occur. This requirement and a defense to preference liability predicated on it—the "Kiwi defense"—were the subject of a ruling handed down by a Delaware bankruptcy court. In Pirinate Consulting Grp., LLC v. C. R. Meyer & Sons Co.

In Short:

The Action: Courts in Singapore and the states of New York and Delaware have formally implemented Guidelines for Communication and Cooperation between Courts in Cross-border Insolvency Matters.

The Motivation: The Guidelines were developed to improve the efficiency and effectiveness of cross-border insolvency proceedings and to encourage coordination and cooperation among relevant courts.

Looking Ahead: Expect the Guidelines to be implemented in other significant jurisdictions.