R&I Alert
Restructuring & Insolvency News
October 2018, Issue 3
In This Issue:
• What happens to committee claims when a
case is converted from a chapter 11 case to
a chapter 7 case? 1
• Equitable mootness: alive and well in the
third circuit 1
• Buyer beware: anti-assignment clauses
enforceable under delaware law 2
• Bankruptcy court finds substantive consolidation
of non-debtors not an available remedy in
seventh circuit 3
• A creditor is allowed to be “selfish” when
The American economy is increasingly dependent upon the importation of merchandise, both raw materials and finished goods. Many of these imported goods are subject to duties imposed by U.S. Customs and Border Protection (“Customs”), known as “ordinary duties.” In some situations, supplemental duties such as antidumping and countervailing duties, and now the new duties on aluminum and steel imposed by Executive Order, are also assessed.
The UK Court of Appeal recently considered the liability of issuers to secondary market investors under the Misrepresentation Act 1967 (the “1967 Act”) in the case of Taberna Europe CDO II Plc v Selskabet (formerly Roskilde Bank A/S) (In bankruptcy) [2016] EWCA Civ 1262. The Court found that primary and secondary investors could potentially be entitled to rely on online content, such as product presentations, which have been published in a deliberate manner, particularly if the issuer directs investors to the content.
The Southern District of New York upheld a very closely watched decision of recent years affecting bankruptcies in the oil and gas industry.
Restructuring lawyers and distressed companies alike were granted welcome relief by the US Second Circuit Court of Appeals when it overturned the decision of the District Court in the case of Marblegate Asset Management, LLC v Education Management Finance Corp.[1]
CR&B Alert
Commercial Restructuring & Bankruptcy News
OCTOBER 2016, ISSUE 3
In This Issue:
Delaware and New York at Odds over Reclamation Claims--2
Second Circuit Sets Out Standard for Determining Scope of Free and Clear Provision in Sale Order Under Section 363(F)--2
Good Faith Filing Requirement Alive and Well in Involuntary Bankruptcy Cases--4
Unpaid Compensation Payable Exclusively in Stock Constitutes Equity, Not an Unsecured Claim--5
Two United States courts recently issued decisions involving the scope of the Bankruptcy Code’s safe-harbor provision in section 546(e) related to avoidance actions. In one, in the Second Circuit, the court took a broad approach to protect the financial markets, whereas the Seventh Circuit interpreted that statute more narrowly. The Supreme Court is now well-positioned to bring greater clarity to this important area of law.
The power of a bankruptcy court to authorize the sale of assets “free-and-clear” of liens and any other interests is a powerful tool that is used to realize value from distressed businesses. Indeed, purchasers will occasionally insist that sellers file a chapter 11 case in order to “cleanse the assets” by conducting their sale under Bankruptcy Code § 363(b). But how far does this power reach? Can bankruptcy be used to protect the purchaser from potential successor liability claims?
New York bankruptcy judge dismisses claims to recover approximately $1 billion that had been distributed to noteholders following commencement of the Lehman Brothers chapter 11 proceedings in September 2008.
The Pension Protection Fund (“PPF”) has updated its approach to employer restructuring guidance and its general guidance for restructuring and insolvency professionals. These documents set out certain criteria that should be met when making proposals to the PPF in respect of a sponsoring employer suffering an insolvency event.
1. The PPF Approach to Employer Restructuring: