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    European restructuring watch alert : the Finance Act 2020: provisions for joint and several tax liability for directors, managers, shareholders and lenders
    2020-08-06

    The Finance Act 2020 provides that directors, managers, shareholders, lenders and others can be made jointly and severally liable for the outstanding tax debts of insolvent (or potentially insolvent) companies and limited liability partnerships (LLPs).

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Tax, Weil Gotshal & Manges LLP, Corporate governance, HM Revenue and Customs (UK)
    Authors:
    Natasha Ayres
    Location:
    United Kingdom
    Firm:
    Weil Gotshal & Manges LLP
    The Devil Is in the Details … The Doctrine of Recoupment
    2019-05-10

    When it comes to offsets, bankruptcy law provides for two distinct remedies: (1) setoff and (2) recoupment.

    Setoff allows a creditor to reduce the amount of prepetition debt it owes a debtor with a corresponding reduction of that creditor’s prepetition claim against the debtor. The remedy of setoff is subject to the automatic stay, as well as various conditions under § 553 of the Bankruptcy Code — including that it does not apply if the debts arise on opposite sides of the date on which the debtor’s case was commenced.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP
    Authors:
    Justin R. Pitcher
    Location:
    USA
    Firm:
    Weil Gotshal & Manges LLP
    Going Once, Going Twice: Avoiding a Prepetition Foreclosure Sale in Chapter 11
    2018-10-22

    Among the many protections afforded creditors under the Bankruptcy Code is the estate’s ability to avoid transfers made before the petition date that benefit certain creditors at the expense of others. These so-called avoidance actions are primarily governed by Sections 544, 547 and 548 of the Bankruptcy Code, which set forth the requirements for challenging prepetition transfers as preferential or fraudulent.

    Filed under:
    USA, Pennsylvania, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, US Congress, SCOTUS, United States bankruptcy court, Third Circuit
    Authors:
    Jessica Liou
    Location:
    USA
    Firm:
    Weil Gotshal & Manges LLP
    Statutory interest: UK Court of Appeal judgment on Lehman Waterfall II Parts A and B
    2017-10-24

    The Court of Appeal in London today gave judgment on Parts A and B of the Lehman Waterfall II Appeal, as part of the ongoing dispute as to the distribution of the estimated £8 billion surplus of assets in the main Lehman operating company in Europe, Lehman Brothers International (Europe) (LBIE).

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, Court of Appeal of England & Wales
    Authors:
    Mark Lawford , Rosalind Meehan
    Location:
    United Kingdom
    Firm:
    Weil Gotshal & Manges LLP
    Marblegate: what does it mean for European restructurings?
    2017-01-25

    In a highly-anticipated decision on a long-running bondholder dispute, the US Court of Appeals for the Second Circuit issued its judgment last week in Marblegate Asset Management LLC v Education Management Corp. It concluded that “Section 316(b) [of the US Trust Indenture Act 1939] prohibits only non-consensual amendments to an indenture’s core payment terms”, i.e. the amount of principal and interest owed and the maturity date.

    Filed under:
    European Union, USA, Capital Markets, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, Bankruptcy, Consideration, Second Circuit
    Authors:
    Andrew Wilkinson , Alexander Wood
    Location:
    European Union, USA
    Firm:
    Weil Gotshal & Manges LLP
    Tinkering With Ipso Facto Provisions In Financial Contracts Could Send Them Sailing Out of Safe Harbors
    2016-07-28

    The scope of the Bankruptcy Code’s safe harbor for certain financial contracts has been tested again, this time in the United States Bankruptcy Court for the Western District of Louisiana. The question this time was whether an ipso facto provision continues to be safe harbored if enforcement of that provision is conditioned on other factors – in this case, the debtor’s failure to perform under the contract.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, Bankruptcy, Debtor, Breach of contract, Safe harbor (law), Liquidation, United States bankruptcy court
    Location:
    USA
    Firm:
    Weil Gotshal & Manges LLP
    EFH Court Refuses to Entertain “Legal Fiction,” Dismisses First-Lien Trustee’s Turnover Action Against Second-Lien Noteholders to Recover Make-Whole Not Payable by Debtors
    2016-06-27

    Earlier this month, Judge Sontchi dismissed an intercreditor adversary complaint filed in 2014 by the Energy Future Holdings (“EFH”) first-lien trustee against the second-lien noteholders. At issue in this decision, Delaware Trust Co. v. Computershare Trust Co.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, Bankruptcy, Debtor, Debt, Trustee
    Location:
    USA
    Firm:
    Weil Gotshal & Manges LLP
    Are you Covered? The Insured v. Insured Exclusion
    2016-05-31

    The availability of a debtor’s insurance policy can have a significant impact on its chapter 11 case. Indeed, in certain chapter 11 cases insurance proceeds may be a creditor’s only opportunity to potentially receive a recovery on meritorious claims. Relying on insurance proceeds, however, is not infallible. An insurance policy may, for example, contain a coverage exclusion that would preclude a claim. For instance, nearly all directors’ and officers’ liability insurance policies traditionally include an insured v.

    Filed under:
    USA, Michigan, Insolvency & Restructuring, Insurance, Litigation, Weil Gotshal & Manges LLP, Debtor, Liquidation, Debtor in possession, Title 11 of the US Code
    Authors:
    Candace Arthur
    Location:
    USA
    Firm:
    Weil Gotshal & Manges LLP
    Southern District of New York Reopens Atari’s Bankruptcy Cases
    2016-05-04

    Until recently, In re Atari, Inc. was a closed case, but, in a recent decision, the bankruptcy court for the Southern District of New York found that “other cause” existed to reopen the bankruptcy cases. 

    Background

    Filed under:
    USA, New York, Banking, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, Bankruptcy, United States bankruptcy court
    Authors:
    Brenda L. Funk
    Location:
    USA
    Firm:
    Weil Gotshal & Manges LLP
    Ninth Circuit B.A.P. Drove Down Bayshore Boulevard and Rendered a Decision on the Merits of a Section 363(m) Appeal in the Face of New Facts
    2016-04-04

    “We’re riding down the boulevard,
    We’re riding through the dark night,
    With half the tank and empty heart,
    Pretending we’re in love, when it’s never enough, nah.”

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Private Client & Offshore Services, Real Estate, Weil Gotshal & Manges LLP, Ninth Circuit
    Authors:
    Andriana Georgallas
    Location:
    USA
    Firm:
    Weil Gotshal & Manges LLP

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