Section 546(e) of the Bankruptcy Code's "safe harbor" preventing avoidance in bankruptcy of certain securities, commodity, or forward-contract payments has long been a magnet for controversy. Several noteworthy court rulings have been issued in bankruptcy cases addressing the application of the provision, including application to financial institutions, its preemptive scope, and its application to non-publicly traded securities.
Every passing month seems to bring with it a new set of “market making” events that consistently catapults the deal and debt financing economy in a new direction. Nonetheless, there are certain trends that the JMBM attorneys on the “financing frontlines” see repeatedly, and this fall seemed as good a time as any to convey them. By sharing these points, we hope to better prepare our friends, colleagues and clients for navigating through the current debt and restructuring markets, in preparation for the months and quarters that lie ahead.
Hajime Ueno, Masaru Shibahara and Kotaro Fuji, Nishimura & Asahi
This is an extract from the 2024 edition of GRR's The Asia-Pacific Restructuring Review. The whole publication is available here.
This is an Insight article, written by a selected partner as part of GRR's co-published content. Read more on Insight
From the West Coast Healthcare Desk is a new ongoing series of Holland & Knight Healthcare Blog articles and alerts focused on healthcare industry developments and points of interest in the West Coast healthcare marketplace. Holland & Knight's nationally ranked healthcare practice has been focused on healthcare compliance, transactional, reimbursement and operational trends that have often started in California before spreading nationwide – managed care and various capitated and quality-based reimbursement models being the most obvious examples.
In a decision likely to have a knock-on effect for future fraudulent transfer defense and valuation litigation, the Delaware bankruptcy court recently ruled that the price agreed in the sale of an oil and gas company closed by market participants represents the reasonably equivalent value for the assets being sold and is more reliable evidence of value than expert testimony prepared for the purposes of litigation.
The increase in bankruptcy filings that restructuring professionals have been expecting is now arriving. With rising inflation, increased interest rates, tightening credit markets, labor shortages and supply chain disruptions, we are starting to see a dramatic increase in filings. Last week the American Bankruptcy Institute noted that commercial Chapter 11 filings increased 105% in May 2023 as compared to May 2022 and across the board filings are on the rise as well.
Managing the financial health of a business to ensure it continues to be viable and successful can be challenging, particularly in today’s economic environment.
June 2023
Contents
Martin Rogers, Jonathan K Chang and Clement Sung, Davis Polk & Wardwell
This is an extract from the 2024 edition of The Asia-Pacific Arbitration Review. The whole publication is available here.
This is an Insight article, written by a selected partner as part of GAR's co-published content. Read more on Insight
Morgan Heavener, Darren Mullins and Paul Wright, Accuracy
This is an extract from the 2023 edition of GIR's Europe, Middle East and Africa Investigations Review. The whole publication is available here.
There are a number of options and avenues that a company can explore when faced with business stress or distress. Depending on the circumstances, a combination of these could be appropriate to help mitigate or avoid a business failing.
This guide provides an overview of potential options and should be considered alongside specific advice from the company's advisors.
Informal Options
Even when informal options are being considered, directors should engage with their advisors and stakeholders to ensure that their decisions take into account their directors' duties.