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    Fifth Circuit: Bid Protections for Stalking Horse in Bankruptcy Asset Sale Satisfied Both Business Judgment and Administrative Expense Standards
    2023-12-07

    Bankruptcy and appellate courts disagree over the standard that should apply to a request for payment of a break-up fee or expense reimbursement to the losing bidder in a sale of assets outside the ordinary course of the debtor's business. Some apply a "business judgment" standard, while others require that the proposed payments satisfy the more rigorous standard applied to administrative expense claims.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Due diligence, Fifth Circuit
    Authors:
    Paul M. Green
    Location:
    USA
    Firm:
    Jones Day
    Delayed sanction hearing under Part 26A Companies Act 2006 - a rare sight!
    2023-12-07

    The High Court has recently considered and allowed the application of an opposing creditor to extend the time allocated for the hearing to sanction a restructuring plan under Part 26A of the Companies Act 2006. David Garner reports on the sanction hearing below.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Capital Law LTD, Insolvency, Companies Act 2006 (UK), Corporate Insolvency and Governance Act 2020
    Authors:
    David Garner
    Location:
    United Kingdom
    Firm:
    Capital Law LTD
    Purdue Pharma Oral Arguments at U.S. Supreme Court: A Summary & A Compilation of Justices’ Comments/Questions
    2023-12-07

    Oral arguments at the U.S. Supreme Court in Harrington v. Purdue Pharma L.P. happened on December 4, 2023. Here is a link to the official transcript of such arguments.

    My Impression

    I’ve read that transcript—and still don’t know what the Court is going to do.

    But based on the comments/questions of the justices (which are summarized and compiled below), I do have one impression:

    Filed under:
    USA, Nebraska, Insolvency & Restructuring, Litigation, Koley Jessen PC, Supreme Court of the United States
    Authors:
    Donald L. Swanson
    Location:
    USA
    Firm:
    Koley Jessen PC
    Cure and Reinstatement of Defaulted Loan Under Chapter 11 Plan Requires Payment of Default-Rate Interest
    2023-12-07

    Section 1124(2) of the Bankruptcy Code gives chapter 11 debtors a valuable tool for use in situations where long-term prepetition debt carries a significantly lower interest rate than the rates available at the time of emergence from bankruptcy. Under this section, in a chapter 11 plan, the debtor can "cure" any defaults under the relevant agreement and "reinstate" the maturity date and other terms of the original agreement, thus enabling the debtor to "lock in" a favorable interest rate in a prepetition loan agreement upon bankruptcy emergence.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day
    Authors:
    Oliver S. Zeltner
    Location:
    USA
    Firm:
    Jones Day
    Debt & taxes - dealing with HMRC in insolvency proceedings
    2023-12-04

    An analysis of recent statistics show what the Insolvency and Tax Disputes teams at Mishcon de Reya have long experienced – that HMRC is not in the habit of overlooking an outstanding debt.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Tax, Mishcon de Reya LLP, Insolvency, HM Revenue and Customs (UK)
    Authors:
    Jessica Williams , Cathal Mcloughlin , Tabassum Khan , Nick Payne
    Location:
    United Kingdom
    Firm:
    Mishcon de Reya LLP
    Just Smile and Waive: Ontario Court Affirms Receivers May Waive Solicitor-Client Privilege
    2023-12-04

    In the recent decision of Ontario Securities Commission v Go-To Developments Holdings Inc et al, 2023 ONSC 5921 (“Go-To Developments”), the Court affirmed a receiver’s ability to control solicitor-client privilege in order to perform their mandate. The Court specifically considered whether a receiver could access email correspondence between the principal of the companies under receivership and other interested parties.

    Filed under:
    Canada, Ontario, Insolvency & Restructuring, Legal Practice, Litigation, Fasken, Attorney-client privilege, Ontario Securities Commission, Court of Appeal of Alberta
    Authors:
    Jessica Cameron , Kaitlyn Wong , Tom Kusch
    Location:
    Canada
    Firm:
    Fasken
    Year in Review: Restructuring & Insolvency
    2023-12-05

    Industry insights 

    Following two significant insolvency decisions in the High Court of Australia (Bryant v Badenoch Integrated Logging Pty Ltd and Metal Manufactures Pty Limited v Morton), insolvency professionals and creditors have had to reassess the value and requirements of proof   in unfair preference claim recoveries.

    Filed under:
    Australia, Insolvency & Restructuring, Litigation, Piper Alderman, High Court of Australia
    Location:
    Australia
    Firm:
    Piper Alderman
    Supreme Court delivers judgment on the appropriate test for insolvency in Personal Insolvency Arrangements
    2023-12-06

    On 30 November the Supreme Court delivered its written judgment dealing with the correct test for insolvency when considering the eligibility of a debtor for a Personal Insolvency Arrangement (PIA) under the Personal Insolvency Act 2012 (as amended).

    Background

    One of the qualifying criteria for a PIA is that the debtor must demonstrate that the debtor is “insolvent” within the meaning of section 2(1) of the Personal Insolvency Act 2012. That provision defines the term as meaning “that the debtor is unable to pay his or her debts in full as they fall due”.

    Filed under:
    Ireland, Insolvency & Restructuring, Litigation, ByrneWallace LLP
    Authors:
    John Fitzgerald
    Location:
    Ireland
    Firm:
    ByrneWallace LLP
    Focus on fraud and asset tracing: Cayman Grand Court opens the door to investor claims against companies
    2023-12-06

    This article will look at the recent decision of David Doyle J in In the Matter of HQP Corporation Limited (in Official Liquidation) (7 July 2023) and its effect on the ability of investors to recover damages from a company in which they have acquired shares as a result of a fraudulent misrepresentation.

    Introduction

    The case involved an application by liquidators for direction in relation to three issues in the winding up of the Company:

    Filed under:
    Cayman Islands, Company & Commercial, Insolvency & Restructuring, Litigation, White Collar Crime, Ogier, Shareholder, Liquidation, Articles of association, House of Lords, Cayman Islands Court of Appeal
    Authors:
    James Clifford , Jennifer Fox
    Location:
    Cayman Islands
    Firm:
    Ogier
    Hon’ble Supreme Court upholds constitutionality of section 95 to section 100 of the IBC relating to personal guarantors
    2023-12-06

    1. INTRODUCTION

    On 9 November 2023, a three-judge bench of the Hon’ble Supreme Court comprising of the Hon’ble Chief Justice of India DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra, while disposing off over 350 writ petitions, in Dilip B. Jiwarajka v. Union of India and Ors. 1 , upheld the constitutional validity of several key provisions [Section 95 to Section 100] of the Insolvency and Bankruptcy Code, 2016 (Code) pertaining to the insolvency resolution process for individuals and partnership firms.

    Filed under:
    India, Insolvency & Restructuring, Litigation, INDUSLAW, Insolvency and Bankruptcy Code (India), Supreme Court of India
    Authors:
    Padmaja Kaul , Kushagra Sah
    Location:
    India
    Firm:
    INDUSLAW

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