We are again reminded that the clear terms of a written contract—even if they might yield a surprising result—will govern. For those who don’t bother to read the “clickwrap” terms and conditions when, for example, signing up for the new online game or entrusting millions in crypto currency, those controlling terms may surprise. Parties in any transaction cannot just assume that the “boilerplate”—whether a make-whole in a note, a subordination provision in a credit agreement, or terms and conditions in a customer agreement—will be acceptable.

The massive FTX bankruptcy has rattled the crypto industry. While it may take some time for investors, investigators, and customers to learn what happened in the lead up to FTX’s demise, it seems already clear that many FTX customers will lose cryptocurrency and other digital assets (“Tokens”) they had deposited in FTX trading accounts. News reports suggest that those losses are the result of FTX’s related trading arm, Alameda Research, having borrowed FTX customer deposits using FTX’s proprietary token as collateral at an inflated valuation.

A new decision out of the New York state court has added to the recent trend of courts refusing to dismiss legal challenges to priming transactions.

In previous alerts in this series, we have discussed how transformative DAOs can be for corporate formation and tax status. We have discussed how determining a DAO’s classification—whether a DAO is a legal entity and, if so, what type—is vital before any legal proceeding.

DAOs, or decentralized autonomous organizations, are the latest trend in crypto. DAOs have the potential to disrupt the traditional economic system, but, they also raise significant issues of securities, tax, bankruptcy corporate law. Over the last few months, our Fintech group has issued a series of client alerts exploring these issues. You can find our complete collection below.

With priming transactions experiencing a resurgence over the past few years, there have been a number of different routes taken by lenders with one goal in mind - Assemble a majority position and exchange, refinance or otherwise abandon their existing positions to move up the capital structure, which in turn helps increase their blended return on their exposure to a borrower and prevents a different configuration of investors from grabbing the “high ground” above them.

They are all the rage: People are forming decentralized autonomous organizations (DAOs) as vehicles to purchase or bid on a wide range of assets—NFL teams, golf courses, fossil-fuel companies, even a copy of the U.S. Constitution.

Priming transactions have grown in frequency during the pandemic, and with them, new ways to test the limits of credit agreement provisions. In a recent example, lenders to struggling restaurant-supplier TriMark entered into a transaction whereby they provided new money to TriMark, primed non-participating existing lenders, and then amended the existing credit agreement to broaden the contract’s “no-action clause” to make it difficult for non-participating lenders to bring suit under the credit agreement. It didn’t work.

Chinese bankruptcies have surged recently as the government uses the legal system to deal with “zombie” companies and reduce industrial overcapacity as part of a broader effort to restructure the economy. According to figures from the Supreme People’s Court, Chinese courts accepted 5,665 bankruptcy cases in 2016, an increase of 53.8% from the previous year1. As the Chinese government and the courts become more receptive to bankruptcies, without a mature market-based credit system in place, the risks heighten that debtors and creditors could try to game the bankruptcy process.

On February 25, 2020, in Rodriguez v. FDIC,¹ the U.S. Supreme Court unanimously rejected the application of the so-called “Bob Richards” rule, a judicial doctrine that was developed in the context of a bankruptcy case almost 60 years ago concerning ownership of tax refunds secured by the parent corporate entity on behalf of a bankrupt subsidiary included in a consolidated group tax return.