Following substantive proceedings in the BVI, Mr Akbar was ordered to pay around $16m. The Claimant registered that judgment in England and applied for a charging order over a property believed to be owned by Mr Akbar in Trevor Square (valued at £9m). In response, Mr Akbar contended that the property – which he and his family had occupied rent free since 2005 – did not belong to him, but was beneficially owned by a company (Legacy Holdings Limited), which was in turn held within a discretionary trust (the Garden Trust).
The Bankruptcy Protector
On August 31, 2021, Sequential Brands Group, Inc. (NASDAQ:SQBG), together with its wholly-owned subsidiaries that own, manage and license a large-scale and diversified portfolio of consumer brands across multiple industries, filed a petition for relief under Chapter 11 of the Bankruptcy Code in the Bankruptcy Court for the District of Delaware (Case No. 21-11194). The company reports $442.8 million in assets and $435.1 million in liabilities.
Courts frequently dismiss creditor appeals of bankruptcy confirmation orders as equitably moot. However, the Eighth Circuit Court of Appeals recently departed from this historic practice. In reversing a District Court determination that confirmation of a plan rendered a creditor’s appeal equitably moot, the Eighth Circuit held that motions to dismiss for equitable mootness should be “rarely granted,” and it reversed and remanded the lower courts’ dismissal of a creditor’s appeal of a Plan Confirmation Order on equitable mootness grounds.
In this two part article we highlight for directors some of the main ways in which the general protection of limited liability does not apply or can be lost.
Part one of this article discusses those exceptions to the principle of limited liability that arise in insolvency or distress situations. Part two deals with the provisions that have more general applicability.
Breach of duties
The author examines a recent decision by the U.S. Court of Appeals for the Third Circuit that involved whether a contract was, or was not, an executory contract.
“[B]ankruptcy inevitably creates harsh results for some players,” explained the U.S. Court of Appeals for the Third Circuit on May 21, 2021, when it denied a film producer’s claim for contractual cure payments in In re Weinstein Company Holdings, LLC. 1
Following its approval on 5th August 2021 by the Council of Ministers, the Law-Decree n. 118 was published on 24th August into the G.U. n. 202 about the topic of "Urgent measures in the field of business crises and business reorganisation, as well as further urgent measures in the field of justice".
Firstly, the Law-Decree postpones the entry into force of the Italian Crisis Code until 16th May 2022 (Art. 1, letter a), further postponing to 31 December 2023 the “crisis alert related procedures” introduced by Article 12 of the Crisis Code.
A seguito dell’approvazione avvenuta il 5 agosto 2021 da parte del Consiglio dei ministri, è stato pubblicato il 24 agosto in G.U. n 202 il Decreto-legge n. 118 in tema di “Misure urgenti in materia di crisi d’impresa e di risanamento aziendale, nonché ulteriori misure urgenti in materia di giustizia”.
Il Decreto in primo luogo differisce l’entrata in vigore del Codice della Crisi al 16 maggio 2022 (art. 1, lett. a), posticipando ulteriormente al 31 dicembre 2023 le procedure di allerta della crisi introdotte dall'art. 12 CCI.
On August 16, 2021, the US Court of Appeals for the Fifth Circuit held that an individual guarantor remained liable for more than $58 million in commercial debt, despite the individual’s claims that the lenders induced him to provide the guaranty under duress. See Lockwood International, Inc. v. Wells Fargo, NA, et al., Case No. 20-40324 (5th Cir. Aug. 16, 2021).
On August 30, 2021, BL Santa Fe, LLC, along with one affiliated debtor doing business as Bishops Lodge, an Auberge Resorts Collection luxury hotel and resort located in Santa Fe, New Mexico, filed a petition for relief under Chapter 11 of the Bankruptcy Code in the Bankruptcy Court for the District of Delaware (Case No. 21-11190). The company reports $50 to $100 million in both assets and liabilities.