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    Tax issues on corporate reorganisations
    2009-05-31

    It is not surprising that within an economic outlook which seems permanently set to "gloomy" many companies are having to think about reorganising their operations or restructuring their holding structures This article highlights some of the tax and other considerations which must be borne in mind when considering such reorganisations or restructurings with reference to some recent (and less recent) cases and changes in the law and points which have come to the fore in the current climate.

    Recapitalisations

    Filed under:
    USA, Insolvency & Restructuring, Tax, Jones Day, Share (finance), Shareholder, Market capitalisation, Debtor, Value added tax, Taxable income, Swap (finance), Debt, Balance sheet, Market value, Subsidiary, Corporate bond, Finance Acts (UK), Companies Act 2006 (UK), Court of Justice of the European Union
    Authors:
    Anthony Whall
    Location:
    USA
    Firm:
    Jones Day
    Good-faith Chapter 11 filing determination defeats fiduciary duty breach claim
    2008-08-01

    For the third time in as many years, the Delaware Chancery Court has handed down an important ruling interpreting the interaction between federal bankruptcy law and Delaware corporate law. The thorny question this time was whether a bankruptcy court’s determination that the directors of a corporation acted in good faith when they authorized a chapter 11 filing precluded a subsequent claim that the directors breached their fiduciary duties by doing so. The Delaware Chancery Court concluded that it did, ruling in Nelson v.

    Filed under:
    USA, Delaware, Company & Commercial, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Shareholder, Breach of contract, Fiduciary, Debt, Good faith, Balance sheet, Bad faith, Line of credit, Secured creditor, Collateral estoppel, Delaware Court of Chancery, United States bankruptcy court, Chief executive officer
    Location:
    USA
    Firm:
    Jones Day
    Delaware Supreme Court limits scope of “zone of insolvency” fiduciary duties
    2007-10-01

    In a significant Delaware law decision regarding creditors’ ability to sue corporate fiduciaries, the Delaware Supreme Court recently addressed the issue of whether a corporate director owes fiduciary duties to the creditors of a company that is insolvent or in the “zone of insolvency.” In North American Catholic Educ. Programming Found., Inc. v. Gheewalla, the court concluded that directors of a solvent Delaware corporation that is operating in the zone of insolvency owe their fiduciary duties to the corporation and its shareholders, and not creditors.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Shareholder, Breach of contract, Fiduciary, Board of directors, Good faith, Involuntary dismissal, Stakeholder (corporate), Business judgement rule, Delaware General Corporation Law, Goldman Sachs, Delaware Court of Chancery, Delaware Supreme Court
    Location:
    USA
    Firm:
    Jones Day
    Choice of bankruptcy venue: sound strategy or forum shopping?
    2007-04-01

    One of the most significant considerations in a prospective chapter 11 debtor’s strategic pre-bankruptcy planning is the most favorable venue for the bankruptcy filing.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Debtor, Consumer protection, Liquidation, Collective bargaining, Forum shopping, Title 11 of the US Code, United States bankruptcy court
    Location:
    USA
    Firm:
    Jones Day
    Mandatory subordination under section 510(b) extends to claims arising from purchase or sale of affiliate’s securities
    2014-03-31

    Section 510(b) of the Bankruptcy Code provides a mechanism designed to preserve the creditor/shareholder risk allocation paradigm by categorically subordinating most types of claims asserted against a debtor by equity holders in respect of their equity holdings. However, courts do not always agree on the scope of this provision in undertaking to implement its underlying policy objectives. A New York bankruptcy court recently addressed this issue in In re Lehman Brothers Inc., 2014 BL 21201 (Bankr. S.D.N.Y. Jan. 27, 2014).

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Jones Day, Shareholder, Debtor, Security (finance), United States bankruptcy court, Court of equity
    Authors:
    Charles M. Oellermann , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Claims trader alert
    2013-11-21

    A ruling handed down by the Third Circuit Court of Appeals on November 15, 2013, adds yet another chapter to the ongoing controversy concerning whether sold or assigned claims can be subject to disallowance under section 502(d) of the Bankruptcy Code on the basis of the seller’s receipt of a voidable transfer. The decision—In re KB Toys Inc., 2013 WL 6038248 (3d Cir. Nov. 15, 2013)—is an unwelcome missive for claims traders. For the first time since the enactment of the Bankruptcy Code in 1978, a circuit court of appeals has concluded that:

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Second Circuit, Third Circuit
    Location:
    USA
    Firm:
    Jones Day
    Eurosail Supreme Court judgment: delineating the boundaries of insolvency "to be solvent or not to be solvent, that is the question"
    2013-07-31

    Odd as it may seem, you have to plough through 122 sections of the UK Insolvency Act 1986 (the “Act”) before you finally reach the section that sets out the criteria for establishing insolvency. Section 123 of the Act lists a series of circumstances under which a company may be deemed insolvent. Some of these circumstances are factual—for example, owing a debt of more than £750 for more than 21 days after a demand for payment—but two rely on a legal test of company insolvency.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Jones Day, Debt, Liability (financial accounting), Balance sheet, Insolvency Act 1986 (UK), Lehman Brothers, UK Supreme Court
    Authors:
    Mark G. Douglas
    Location:
    United Kingdom
    Firm:
    Jones Day
    Euroresource--deals and debt
    2013-05-29

    Europe, the U.S. and Canada—On 7 May 2013, the US Bankruptcy Court for the District of Delaware denied a motion by European creditors of Nortel Networks Corp. ("Nortel") to certify a direct appeal to the U.S. Court of Appeals for the Third Circuit of the bankruptcy court's 3 April 2013 ruling (Inre Nortel Networks, Inc., Case No. 09-10138 (KG), 2013 BL 92666 (Bankr. D. Del. Apr.

    Filed under:
    USA, Arbitration & ADR, Insolvency & Restructuring, Litigation, Jones Day, Debt, Liability (financial accounting), Balance sheet, Insolvency Act 1986 (UK), United States bankruptcy court
    Authors:
    Corinne Ball , Dr. Volker Kammel , Matthew French , Kay V. Morley
    Location:
    USA
    Firm:
    Jones Day
    KERP or KEIP: fireworks continue on keeping key employees at the helm in chapter 11
    2012-10-01

    Changes made to the Bankruptcy Code in 2005 raised the bar considerably for providing “pay to stay” incentives that had been offered routinely to management and other key employees of a chapter 11 debtor, such as a severance or key employee retention plan (“KERP”).

    Filed under:
    USA, Employment & Labor, Insolvency & Restructuring, Litigation, Jones Day, Severance package
    Authors:
    Heather Lennox , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Construing "substantial contribution" under Section 503(b)(3)(D)
    2012-06-12

    In keeping with the courts’ narrow construction of what constitutes “substantial contribution” in a chapter 11 case, an Ohio bankruptcy court in In re AmFin Financial Corp., 2012 WL 652018 (Bankr. N.D. Ohio Feb. 28, 2012), denied administrative- expense priority to the fees and expenses of the holders of approximately $100 million in senior notes (the “Senior Noteholders”) issued by debtor AmFin Financial Corporation (“AFC”).

    Filed under:
    USA, Ohio, Insolvency & Restructuring, Litigation, Jones Day, Bank holding company, Federal Deposit Insurance Corporation (USA)
    Authors:
    Jennifer L. Seidman
    Location:
    USA
    Firm:
    Jones Day

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