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    The poison pill alternative to stock trading injunctions in Chapter 11
    2007-01-29

    The implementation of restrictions on stock and/or claims trading has become almost routine in large chapter 11 cases involving public companies on the basis that such restrictions are vital to prevent forfeiture of favorable tax attributes that can be triggered by a change in control. Continued reliance on stock trading injunctions as a means of preserving net operating loss carry forwards, however, may be problematic, after the controversial ruling handed down in 2005 by the Seventh Circuit Court of Appeals in In re UAL Corp.

    Filed under:
    USA, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Jones Day, Public company, Bond (finance), Bankruptcy, Shareholder, Debtor, Injunction, Board of directors, Taxable income, Debt, Liability (financial accounting), Internal Revenue Code (USA), United States bankruptcy court
    Location:
    USA
    Firm:
    Jones Day
    Death and taxes assured: confirmation of shell corporation’s tax-avoidance Chapter 11 plan denied
    2010-08-10

    Preservation of favorable tax attributes, such as net operating losses that might otherwise be forfeited under applicable nonbankruptcy law, is an important component of a business debtor's chapter 11 strategy. However, if the principal purpose of a chapter 11 plan is to avoid paying taxes, rather than to effect a reorganization or the orderly liquidation of the debtor, the Bankruptcy Code contains a number of tools that can be wielded to thwart confirmation of the plan.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Tax, Jones Day, Bond (finance), Tax exemption, Bankruptcy, Shareholder, Debtor, Taxable income, Beneficiary, Debt, Liquidation, Tax deduction, Title 11 of the US Code, Internal Revenue Code (USA)
    Authors:
    Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Assessing the impact of the new Chapter 11 exclusivity deadline
    2007-01-29

    A debtor’s exclusive right to formulate and solicit acceptances for a plan of reorganization during the initial stages of a chapter 11 case is one of the most important benefits conferred under the Bankruptcy Code as a means of facilitating the successful restructuring of an ailing enterprise. By giving a chapter 11 debtor-in-possession time to devise a solution to balance sheet and operational problems without being burdened by the competing agendas of other stakeholders in the bankruptcy case, exclusivity levels the playing field, at least temporarily.

    Filed under:
    USA, Insolvency & Restructuring, Jones Day, Bankruptcy, Shareholder, Debtor, Interest, Debt, Standing (law), Liquidation, Good faith, Balance sheet, Exclusive right, Title 11 of the US Code, US Congress, United States bankruptcy court, Trustee
    Location:
    USA
    Firm:
    Jones Day
    Autodis: a surgical restructuring à la française
    2009-07-30

    The recent restructuring of Autodis, a French car parts company, is a perfect illustration of the positive consequences of the reform of the French bankruptcy code in effect since February 15, 2009. The combined use of the French conciliation procedure for the operating company and the French safeguard procedures for the holding companies were agreed upon between the debtor and its creditors pursuant to the first pre-pack agreement executed in France.

    Background

    Filed under:
    France, Insolvency & Restructuring, Jones Day, Bond (finance), Bankruptcy, Shareholder, Credit (finance), Debtor, Debt, Investment banking, Leveraged buyout, Write-off, United States bankruptcy court
    Authors:
    Laurent Assaya , Frédéric Gros
    Location:
    France
    Firm:
    Jones Day
    Good news and bad news for corporate managers dealing with insolvency issues
    2007-06-18

    Directors and officers of Delaware corporations face no liability to corporate creditors from direct claims for breach of fiduciary duty, under the Delaware Supreme Court’s recent ruling in North American Catholic Educational Programming Foundation, Inc. v. Gheewalla, (May 18, 2007) (“North American Catholic”).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Bryan Cave Leighton Paisner (Bryan Cave), Bond (finance), Bankruptcy, Shareholder, Debtor, Breach of contract, Fiduciary, Board of directors, Insider trading, Good faith, Due diligence, Non-disclosure agreement, Delaware General Corporation Law, US Securities and Exchange Commission, Barclays, Delaware Supreme Court, US District Court for SDNY, Colorado Supreme Court
    Location:
    USA
    Firm:
    Bryan Cave Leighton Paisner (Bryan Cave)
    The absolute priority rule: an endangered species in individual Chapter 11 cases?
    2012-04-09

    The absolute priority rule of Section 1129(b) of the Bankruptcy Code is a fundamental creditor protection in a Chapter 11 bankruptcy case. In general terms, the rule provides that if a class of unsecured creditors rejects a debtor’s reorganization plan and is not paid in full, junior creditors and equity interestholders may not receive or retain any property under the plan. The rule thus implements the general state-law principle that creditors are entitled to payment before shareholders, unless creditors agree to a different result.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Bryan Cave Leighton Paisner (Bryan Cave), Bankruptcy, Shareholder, Debtor, Unsecured debt, Ninth Circuit, Bankruptcy Appellate Panel
    Authors:
    Robert J. Miller , Brian C. Walsh , Gwendolyn Godfrey
    Location:
    USA
    Firm:
    Bryan Cave Leighton Paisner (Bryan Cave)
    Navigating through the storm
    2011-03-30

    There remains much economic uncertainty ahead and it seems that insolvency practices are likely to continue to remain important drivers in accountancy firms. However, insolvency practitioners are facing increased regulation and public scrutiny. They need to remain on top of their game to navigate safely through stormy waters, as Ross Goodrich reports.

    Background

    Filed under:
    United Kingdom, Insolvency & Restructuring, RPC, Shareholder, Unsecured debt, Interest, Accounting, Economy, Liquidation, Liquidator (law), Office of Fair Trading, Institute of Chartered Accountants in England and Wales
    Location:
    United Kingdom
    Firm:
    RPC
    Protecting the customer v depriving the supplier's creditors
    2010-04-09

    In the present fi nancial climate, customers are increasingly asking for business critical software or other assets to be transferred to the customer should the supplier become insolvent, for the legitimate reason that the customer needs security of supply. Two recent Court of Appeal cases remind us that customers who outsource to and contract with potentially vulnerable service providers need to take account of the “anti-deprivation principle” when doing this.

    Filed under:
    United Kingdom, Insolvency & Restructuring, IT & Data Protection, Litigation, RPC, Share (finance), Shareholder, Joint venture, Public limited company, Common law, Insolvency Act 1986 (UK)
    Authors:
    Vivien Tyrell
    Location:
    United Kingdom
    Firm:
    RPC
    Insolvency law reform proposals will push UK to more litigious US system
    2008-05-01

    The European High Yield Association's proposals for reforming the UK insolvency laws risk pushing the UK towards the US litigation-heavy model says Reynolds Porter Chamberlain LLP, the City law firm.

    In proposals submitted to HM Treasury, the trade body for the high yield debt industry called for a "court supervised restructuring process" where:

    Filed under:
    United Kingdom, Insolvency & Restructuring, RPC, Shareholder, Interest, Limited liability partnership, Debt, Supply chain, Distressed securities, HM Treasury (UK)
    Location:
    United Kingdom
    Firm:
    RPC
    IM litigation funding
    2008-03-13

    One pioneer in this area is Toby Duthie, the founder-director of Forensic Risk Alliance, a forensic accounting and investigations business. Duthie became familiar with the US litigation system while assisting European companies responding to US-based litigation. Duthie recognised that there were many differences between the US and the various EU legal systems. For example, unlike in the UK, the application of contingency fees to plaintiff actions is permissible in the US (see above).

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, RPC, Costs in English law, Shareholder, Solicitor, Entrepreneurship
    Location:
    United Kingdom
    Firm:
    RPC

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