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    The perils of self-help
    2011-06-27

    As revealed in a recent bankruptcy case, purchasers of contaminated property need to have a very clear understanding of their contractual remedies before proceeding with self-help. The case (In re Evans Industries, Inc., No.

    Filed under:
    USA, Environment & Climate Change, Insolvency & Restructuring, Litigation, Greenberg Traurig LLP, Bond (finance), Contamination, Bankruptcy, Debtor, Breach of contract, Leasehold estate, Liability (financial accounting), Warranty, Default (finance), Fifth Circuit
    Location:
    USA
    Firm:
    Greenberg Traurig LLP
    Pension Benefit Guaranty Corporation issues final rule on termination dates for pension plans of bankrupt sponsors
    2011-06-28

    On June 14, 2011, the Pension Benefit Guaranty Corporation (PBGC) issued final regulations that apply to single-employer pension plans maintained by employers in bankruptcy. These regulations implement a change made by the Pension Protection Act of 2006 (PPA). The change affects the amount of benefits payable by the PBGC to participants.

    Filed under:
    USA, Employee Benefits & Pensions, Insolvency & Restructuring, McDermott Will & Emery, Bankruptcy, Employee Retirement Income Security Act 1974 (USA), Retirement, Liability (financial accounting), Subsidy, Disability, Sponsor (commercial), Pension Benefit Guaranty Corporation, Pension Protection Act 2006 (USA)
    Authors:
    Alan D. Nesburg
    Location:
    USA
    Firm:
    McDermott Will & Emery
    Buyers in pre pack are responsible for liabilities arising post TUPE transfer
    2011-06-30

    The Employment Appeal Tribunal (EAT) has held inPressure Coolers Ltd v Molley UKEAT/0272/10 that when a transferor under TUPE is subject to insolvency proceedings not instituted with a view to liquidating the transferor's assets, the Secretary of State will only meet employment liabilities that arise before the transfer.

    Filed under:
    USA, Employment & Labor, Insolvency & Restructuring, Litigation, Faegre Baker Daniels LLP, Discrimination, Liability (financial accounting), Liquidation, Unfair dismissal, Precondition, Transfer of Undertakings (Protection of Employment) Regulations 2006 (UK), Employment Appeal Tribunal
    Authors:
    Anna Byford , Alex Denny , Victoria Pengelly
    Location:
    USA
    Firm:
    Faegre Baker Daniels LLP
    Setting aside fraudulent transfers part II: voluntary dissolution and individual liability of principals
    2015-02-17

    This blog is related to the previous blog post of “Setting Aside Fraudulent Transfers” as it relates to a creditor’s efforts to recover from a dissolved corporation or dissolved LLC.  Setting Aside Fraudulent Transfers Part I: What

    Filed under:
    USA, Insolvency & Restructuring, Jimerson & Cobb P.A., Legal personality, Liability (financial accounting), Dissolution (law)
    Authors:
    Charles B. Jimerson
    Location:
    USA
    Firm:
    Jimerson & Cobb P.A.
    ABI chapter 11 Reform Commission series: small and medium sized debtor enterprises
    2015-01-28

    As a part of our continuing coverage of the 2012-2014 Final Report and Recommendations of the American Bankruptcy Institute’s Commission to Study the Reform of Chapter 11, we’ve reported on a number of the Commission’s proposed revisions and reforms to the Bankruptcy Code, many of which (i.e., systemically important financial institutions, cross-border cases, DIP financing, etc.) primarily impact the traditional big players i

    Filed under:
    USA, Insolvency & Restructuring, Weil Gotshal & Manges LLP, Debtor, Liability (financial accounting)
    Authors:
    Matthew Goren
    Location:
    USA
    Firm:
    Weil Gotshal & Manges LLP
    Lehman waterfall application and Game Station decision
    2014-03-18

    In another judicial decision springing from Lehman Brothers, as a result of the likely surplus in the estate of Lehman Brothers International (Europe) (in administration) (LBIE) after all the provable debts have been paid, Mr Justice Richards has issued a ‘statement of conclusions’ in what is called the Waterfall Application. A more detailed judgement is expected in late March 2014. We summarise the conclusions below.

    Ranking and Contributions of Shareholders of Inlimited Companies

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Morrison & Foerster LLP, Shareholder, Landlord, Debt, Liability (financial accounting), Liquidation, Lehman Brothers, Insolvency Act 1986 (UK)
    Authors:
    Afia Fening
    Location:
    USA
    Firm:
    Morrison & Foerster LLP
    Private equity investment funds can now have pension liability for the obligations of portfolio companies
    2013-08-09

    On July 24, 2013 the First Circuit Court of Appeals, applying an “investment plus” test, concluded that a Sun Capital private equity investment fund was engaged in a “trade or business” for purposes of determining whether the fund could be jointly and severally liable under ERISA for the unfunded pension withdrawal liability of the portfolio company.1 Two Sun Capital investment funds, conveniently named Sun Capital Partners III, LP (“Fund III”) and Sun Capital Partners IV, LP, (“Fund IV”) (the “Sun Funds”) collectively owned 100 percent of Scott Brass, Inc.

    Filed under:
    USA, Corporate Finance/M&A, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Haynes and Boone LLP, Employee Retirement Income Security Act 1974 (USA), Private equity, Liability (financial accounting), Joint and several liability, Sun Capital Partners
    Authors:
    Robin E. Phelan , Charles F. Plenge , Sam Lichtman
    Location:
    USA
    Firm:
    Haynes and Boone LLP
    First Circuit finds that a private equity fund can be liable for the pension obligations of its portfolio company
    2013-08-06

    In Sun Capital Partners III, L.P. et al. v. New England Teamsters & Trucking Industry Pension Fund, No. 12-2312, 2013 WL 3814985 (1st Cir. July 24, 2013), the First Circuit held that a private equity fund could be liable for its bankrupt portfolio company’s withdrawal liability imposed under Title IV of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) on the basis of the private equity fund constituting a “trade or business” under ERISA’s controlled group rules.

    Filed under:
    USA, Corporate Finance/M&A, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Sheppard Mullin Richter & Hampton LLP, Bankruptcy, Employee Retirement Income Security Act 1974 (USA), Liability (financial accounting), Sun Capital Partners, Pension Benefit Guaranty Corporation, First Circuit
    Authors:
    Martin J. Smith , Michael Chan , Jason R. Schendel
    Location:
    USA
    Firm:
    Sheppard Mullin Richter & Hampton LLP
    To rank or not to rank: the UK Supreme Court decision in Lehman/Nortel
    2013-07-25

    In a much-awaited judgment, the UK Supreme Court has decided that the liability of a company in administration or liquidation to contribute to an under-funded pension fund following a Financial Support Direction or a Contribution Notice is a provable debt ranking equally with other unsecured creditors. Crucially, it is not an expense of the administration or liquidation which would cause it to rank ahead of all creditors (except fixed charge holders) and even the administrator's or liquidator's own remuneration.

    Filed under:
    USA, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Jones Day, Debtor, Unsecured debt, Debt, Liability (financial accounting), Liquidation, Defined benefit pension plan, The Pensions Regulator (UK)
    Authors:
    Michael Rutstein , John J. Papadakis
    Location:
    USA
    Firm:
    Jones Day
    Bankruptcy sales and successor liability: beware of attacks on so-called “free and clear” sales
    2013-06-20

    Buyers of assets through the bankruptcy court process seek comfort and solace in the entry of a sale order providing for the transfer of assets “free and clear” of all liabilities. Except for those liabilities expressly assumed by the buyer and new owner, the bankruptcy court order typically includes exacting and precise language transferring those assets, under the imprimatur of the United States Bankruptcy Court, free and clear of all liabilities.

    Filed under:
    USA, Employment & Labor, Insolvency & Restructuring, Litigation, Wiley Rein LLP, Bankruptcy, Liability (financial accounting), Fair Labor Standards Act 1938 (USA), Title 11 of the US Code, United States bankruptcy court, Seventh Circuit
    Authors:
    Alexander M. Laughlin , John T. Farnum
    Location:
    USA
    Firm:
    Wiley Rein LLP

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