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    UK Supreme Court confirms the validity of the 'flip' clause
    2011-08-04

    In its ruling on Wednesday 27 July in the matter of Belmont Park Investments PTY Ltd v BNY Corporate Trustee Services Lte & Anor [2011] UKSC 38 the Supreme Court of the United Kingdom has dismissed the appeal by Lehman Brothers Special Finance Inc. ("LSF") relating to the validity of an alleged anti-deprivation provision known as a 'flip' provision which, has the effect of altering the payment priority order as a result of a bankruptcy of the relevant swap counterparty, in this case Lehman Brothers.

    Filed under:
    USA, Derivatives, Insolvency & Restructuring, Litigation, Orrick, Herrington & Sutcliffe LLP, Contractual term, Bankruptcy, Breach of contract, Swap (finance), Good faith, Default (finance), Lehman Brothers, Credit rating agency, Supreme Court of the United States, UK Supreme Court
    Authors:
    Martin Bartlam
    Location:
    USA
    Firm:
    Orrick, Herrington & Sutcliffe LLP
    Creditors’ schemes of arrangement - a restructuring tool to pre-empt class action risks?
    2018-09-27

    When faced with multiple class action threats, there is little downside in a company giving consideration to a creditors’ scheme of arrangement to achieve a quicker and cheaper resolution of the underlying claims.

    Filed under:
    Australia, Company & Commercial, Insolvency & Restructuring, Litigation, Clayton Utz, Class action, Australian Securities Exchange, Lehman Brothers, Corporations Act 2001 (Australia)
    Authors:
    Flora Innes
    Location:
    Australia
    Firm:
    Clayton Utz
    Re Lehman Brothers International (Europe) [2020] EWHC 1932 (Ch)
    2020-08-21

    This was an application by the administrators of Lehman Brothers International (Europe) Ltd for a direction under paragraph 63 of Schedule B1 IA86 that they be at liberty to consent to a request from the company’s directors to distribute surplus funds to the company’s sole shareholder.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Boyes Turner LLP, Lehman Brothers
    Authors:
    Rebecca Nicholson , Lizzie Peck , Oliver Fitzpatrick , Phil Smith
    Location:
    United Kingdom
    Firm:
    Boyes Turner LLP
    Lehman Brothers swap clawback effort rejected By Second Circuit
    2020-08-19

    The Second Circuit ruled last week in Lehman Bros. Special Fin. Inc. v. Bank of Am. Nat'l Ass'n, No. 18-1079 (2d Cir. 2020) that a Lehman Brothers affiliate cannot claw back $1 billion in payments made pursuant to swap agreements that were terminated when Lehman Brothers Holdings Inc. (“LBHI”) and certain of its affiliates filed for bankruptcy in 2008. The panel concluded that the Bankruptcy Code provides a safe harbor for the liquidation of such swap agreements and also the distribution of proceeds from the collateral.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, Hogan Lovells, Swap (finance), Lehman Brothers, Title 11 of the US Code, Second Circuit
    Authors:
    Peter Ivanick , Jennifer Lee
    Location:
    USA
    Firm:
    Hogan Lovells
    Lehman Brothers is Gone but Not Abandoned
    2020-10-08

    On September 30, 2020, the Trademark Trial and Appeal Board ruled in favor of the assignee of the famous LEHMAN BROTHERS trademark against the registration that mark as a brand name for beer, spirits, and bar and restaurant services, finding that the LEHMAN BROTHERS mark had not been abandoned. Barclays Capital, Inc. v. Tiger Lily Ventures, Ltd. (TTAB, September 30, 2020, non-precedential).

    Background

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Trademarks, Akerman LLP, Barclays, Lehman Brothers
    Authors:
    Ira S. Sacks , Rachel B. Rudensky
    Location:
    USA
    Firm:
    Akerman LLP
    City of Swan v Lehman Brothers: deed of company arrangements and third party releases
    2010-03-26

    The High Court of Australia is expected soon to hand down its judgment in Lehman Brothers v City of Swan. It is likely that this judgment will definitively determine whether Deeds of Company Arrangement under Pt 5.3A of the Corporations Act (“the Act”) are able to force creditors to give releases to third parties. 

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Piper Alderman, Bankruptcy, Statutory interpretation, Dividends, Deed, Liquidator (law), Collateralized debt obligation, Bankruptcy discharge, Right to property, Lehman Brothers, Corporations Act 2001 (Australia), High Court of Australia
    Location:
    Australia
    Firm:
    Piper Alderman
    Third-party releases and deeds of company arrangement: Lehman Brothers v City of Swan
    2010-04-29

    Insolvency Partner, Amanda Banton and Lawyer, Anna MacFarlane summarise the High Court’s judgment delivered on 14 April 2010 in which the Court held, as the Full Court of the Federal Court held in first instance, that, properly construed, Pt 5.3A of the Corporations Act (Cth) 2001 does not permit third-party releases within DOCAs.

    The important features of the judgment:

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Piper Alderman, Statutory interpretation, Consideration, Debt, Deed, Liquidator (law), Collateralized debt obligation, Lehman Brothers, Corporations Act 2001 (Australia), Federal Court of Australia
    Location:
    Australia
    Firm:
    Piper Alderman
    High Court rules on third-party releases within deeds of company arrangement
    2010-05-25

    Background
    Judgment
    Schemes of arrangement
    Costs

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Piper Alderman, Statutory interpretation, Consideration, Debt, Deed, Liquidation, Majority opinion, Lehman Brothers, Corporations Act 2001 (Australia), High Court of Australia
    Authors:
    Amanda Banton
    Location:
    Australia
    Firm:
    Piper Alderman
    US Bankruptcy Court flips English decision on flip clauses in Lehman Brothers case
    2010-02-05

    On 25 January 2010, the United States Bankruptcy Court handed down its much anticipated decision in relation to an action brought in that court by two Lehman Brothers entities (the Lehman entities) against BNY Corporate Trustee Services Limited (BNY) (the US Decision).

    Filed under:
    Australia, USA, Banking, Insolvency & Restructuring, Litigation, Securitization & Structured Finance, Clayton Utz, Bankruptcy, Swap (finance), Default (finance), Lehman Brothers, Title 11 of the US Code, Court of Appeal of England & Wales, United States bankruptcy court
    Location:
    Australia, USA
    Firm:
    Clayton Utz
    Corporate restructuring and creditors' participation
    2011-03-01

    While in other jurisdictions creditors of an insolvent company may swap their debts into equity, creditors in Austria are still confronted with a “take it or leave it” approach as to the proposed quota payment to unsecured creditors. The recent insolvencies of large Austrian companies show the inadequacy of Austrian insolvency law in that respect.

    Financial crisis just arrives

    Filed under:
    Austria, Insolvency & Restructuring, Schoenherr, Bond (finance), Shareholder, Debtor, Unsecured debt, Waiver, Market liquidity, Option (finance), Swap (finance), Debt, Refinancing, Corporate bond, Leverage (finance), Lehman Brothers
    Authors:
    Barbara Steger
    Location:
    Austria
    Firm:
    Schoenherr

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