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    UK Supreme Court finds certain pension liabilities are not entitled to priority treatment, in Nortel and Lehman decisions
    2013-12-11

    CASE SNAPSHOT

    In the matter of the Nortel Companies, the UK Supreme Court found that pension liabilities attributed to a company that arose prior to the occurrence of an insolvency event were not entitled to priority treatment, even if the first demand for payment was only made after the insolvency event occurred.

    FACTUAL BACKGROUND

    The Pension Act

    Filed under:
    United Kingdom, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Reed Smith LLP, Debt, Liability (financial accounting), Liquidation, The Pensions Regulator (UK), Lehman Brothers, Pension Protection Fund, UK Supreme Court
    Authors:
    Elizabeth A. McGovern
    Location:
    United Kingdom
    Firm:
    Reed Smith LLP
    When is a total deficit not a total deficit? Another turn of events for pension contributions
    2013-12-20

    Summary

    On 18 December 2013, judgment of the High Court in England and Wales was handed down in a case relating to the insolvency of Lehman Brothers companies (In the Matters of Storm Funding Limited (In Administration) and Others [2013] EWHC 4019 (Ch)).

    Filed under:
    United Kingdom, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Reed Smith LLP, The Pensions Regulator (UK), Lehman Brothers, Pensions Act 2004 (UK), Pensions Act 1995 (UK), High Court of Justice (England & Wales)
    Authors:
    William Sutton , Monika Kuzelova
    Location:
    United Kingdom
    Firm:
    Reed Smith LLP
    Nortel/Lehman: moral hazard powers are a provable debt
    2013-07-26

    Summary

    On 24 July 2013, the Supreme Court handed down its long-awaited judgment in the Nortel/Lehman case: Re Nortel Companies [2013] UKSC 52. The Court looked at the position where a contribution notice (CN) or financial support direction (FSD) was issued by the Pensions Regulator (TPR) on a company that is already in insolvency proceedings in England (eg administration). How does the relevant obligation rank in the order of priority of payment?

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Freshfields Bruckhaus Deringer, Debt, The Pensions Regulator (UK), Lehman Brothers, Pensions Act 2004 (UK), Court of Appeal of England & Wales, UK Supreme Court
    Authors:
    David Pollard , Anne Sharp , Katharina Crinson
    Location:
    United Kingdom
    Firm:
    Freshfields Bruckhaus Deringer
    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, Lehman Brothers, Insolvency Act 1986 (UK), UK Supreme Court
    Authors:
    Michael Rutstein , Mark G. Douglas
    Location:
    United Kingdom
    Firm:
    Jones Day
    The Nortel and Lehman Brothers companies
    2013-07-31

    Background

    Under the Pensions Act 2004 the Pensions Regulator (tPR) has the power to impose a financial support direction (FSD) requiring a company “connected or associated” with the sponsoring employer of a UK pension fund to provide financial support to the pension fund. To date tPR has used the power in insolvencies.

    Filed under:
    United Kingdom, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Dentons, Debt, The Pensions Regulator (UK), Lehman Brothers, Pensions Act 2004 (UK)
    Authors:
    Alan Jarvis , Elmer Doonan , Andrew Patten , Jay Doraisamy
    Location:
    United Kingdom
    Firm:
    Dentons
    Supreme Court clarifies where the Pensions Regulator ranks in insolvency proceedings
    2013-07-24

    The Supreme Court has handed down its highly anticipated judgment in the joint Nortel Networks/Lehman Brothers appeal.  The administrators of Nortel and Lehman Brothers entities had appealed against the Court of Appeal’s decision that Financial Support Directions (FSDs) issued by the Pensions Regulator (“the Regulator”) after the appointment of administrators attracted priority status as an administration expense.  Rejecting the decision of the lower courts, the Supreme Court ruled that an FSD issued during the course of an administration will rank as a provable debt rather than a

    Filed under:
    United Kingdom, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, CMS Cameron McKenna Nabarro Olswang LLP, Unsecured debt, The Pensions Regulator (UK), Lehman Brothers, Pensions Act 2004 (UK)
    Authors:
    Rita Lowe , Emma Riddle
    Location:
    United Kingdom
    Firm:
    CMS Cameron McKenna Nabarro Olswang LLP
    Nortel/Lehman: a balancing act
    2013-07-25

    The Supreme Court handed down its decision yesterday on the combined appeals of Nortel GmbH (In Administration) ("Nortel") and Lehman Brothers International (Europe) (In Administration) ("Lehman Brothers") (together, the "Appellants") against the Pensions Regulator ("tPR").

    Filed under:
    United Kingdom, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Mayer Brown, Debt, The Pensions Regulator (UK), Lehman Brothers, Pensions Act 2004 (UK), Supreme Court of the United States
    Authors:
    Devi Shah , Ashley Katz , Andrew Block , Tessa Blank , Kanchan Adik
    Location:
    United Kingdom
    Firm:
    Mayer Brown
    ‘Point of no return’ is not the point says Supreme Court
    2013-05-09

    So Eurosail-UK 2007-3BL plc (Eurosail) is not ‘balance sheet’ insolvent, no event of default has occurred under the RMBS notes it has issued and a post-enforcement call option (PECO) does not make limited recourse any of the notes it relates to.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Securitization & Structured Finance, Reed Smith LLP, Balance sheet, Lehman Brothers
    Authors:
    Andrzej Janiszewski
    Location:
    United Kingdom
    Firm:
    Reed Smith LLP
    Creditors' compromise Part 2: the view of the High Court of England and Wales
    2018-08-24

    The High Court in England was asked to consider sanctioning a scheme of arrangement between Lehman Brothers International (Europe) (in administration) (LBIE) and certain of its creditors pursuant to Part 26 Companies Act 2006 (the equivalent of Part 15 Companies Act 1993).  This case was one of a number of proceedings involving the Lehman Brothers administration, many of which cases have reached the Supreme Court (see our earlier reports on 

    Filed under:
    United Kingdom, Insolvency & Restructuring, Buddle Findlay, Lehman Brothers, High Court of Justice (England & Wales)
    Authors:
    David Broadmore , David Perry , Jan Etwell , Kelly Paterson , Scott Abel , Scott Barker , Susan Rowe , Willie Palmer , Peter Niven , Bridie McKinnon , Matthew Triggs , Myles O'Brien , Oliver Gascoigne
    Location:
    United Kingdom
    Firm:
    Buddle Findlay
    The Lehman Brothers Administration: Scheme to the Rescue
    2018-08-31

    In September 2008, the seismic collapse of Lehman Brothers initiated one of the largest corporate insolvencies in history. Nearly ten years later, in a landmark decision, the High Court has sanctioned the scheme proposed by the administrators of its principal European trading arm, Lehman Brothers International Europe ("LBIE").1

    Filed under:
    United Kingdom, Banking, Insolvency & Restructuring, White & Case, Lehman Brothers cases, Lehman Brothers
    Authors:
    Will Stoner
    Location:
    United Kingdom
    Firm:
    White & Case

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