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    Who is ‘connected’ or ‘associated’?
    2009-01-21

    Pensions and insolvency legislation uses the test in the Insolvency Act 1986 for assessing whether a person is ‘connected’ or ‘associated’ with another. This test is important because various statutory provisions use it, especially in limiting the persons whom the Pensions Regulator can make responsible for pension scheme deficits under the ‘moral hazard’ powers in the Pensions Act 2004. This briefing gives an outline of the statutory provisions and points to some difficult areas.  

    Why is this relevant?  

    Filed under:
    United Kingdom, Employee Benefits & Pensions, Insolvency & Restructuring, Freshfields Bruckhaus Deringer LLP, Share (finance), Shareholder, Beneficiary, Limited liability partnership, Subsidiary, Actuary, Transfer of Undertakings (Protection of Employment) Regulations 2006 (UK), Insolvency Act 1986 (UK), Pension Protection Fund, Pensions Act 2004 (UK), The Pensions Regulator, Trustee
    Location:
    United Kingdom
    Firm:
    Freshfields Bruckhaus Deringer LLP
    US Bankruptcy Court backs FSDS in Sea Containers case
    2008-09-30

    The United States Bankruptcy Court for the District of Delaware has approved a settlement agreement between three Sea Containers companies, their unsecured creditors and the trustees of the two pension schemes belonging to the UK subsidiary Sea Containers Services Limited.

    Filed under:
    USA, Delaware, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Freshfields Bruckhaus Deringer LLP, Unsecured debt, Subsidiary, The Pensions Regulator, United States bankruptcy court, US District Court for District of Delaware, Trustee
    Location:
    USA
    Firm:
    Freshfields Bruckhaus Deringer LLP
    General Growth Properties bankruptcy court defers final ruling on cash collateral, cash management and DIP financing issues
    2009-05-11

    Following several weeks of speculation about how pending cash collateral, cash management, and debtor-in-possession financing motions might affect basic principles of structured finance, the bankruptcy court deferred a final ruling on the motions and extended the interim cash collateral order. In so doing, Judge Allan L. Gropper of the United States Bankruptcy Court for the Southern District of New York suggested that CMBS lenders organize themselves so that common issues can be identified and resolution expedited.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Legal personality, Debtor, Collateral (finance), Fiduciary, Interest, Debt, Limited partnership, Bad faith, Default (finance), Subsidiary, Commercial mortgage-backed security, United States bankruptcy court
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Third Circuit elaborates on non-statutory insiders
    2009-03-31

    Introduction

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Credit (finance), Debtor, Fair market value, Refinancing, Line of credit, Subsidiary, United States bankruptcy court, Third Circuit
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Delaware Bankruptcy Court decision in SemCrude prohibits triangular setoff in absence of safe harbor
    2009-03-31

    Earlier this year, the United States Bankruptcy Court for the District of Delaware ruled that a nondebtor cannot effect a “triangular” setoff of the amounts owed between it and three affiliated debtors, even if the parties had entered into pre-petition contracts that expressly contemplated multiparty setoff.1 In reaching its decision, the Court relied principally on the plain language of section 553(a) of the United States Bankruptcy Code, which limits setoff to “mutual” obligations — i.e., direct obligations between a single obligor and obligee.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Debtor, Safe harbor (law), Debt, Limited partnership, Precondition, Subsidiary, Title 11 of the US Code, Chevron Corporation, United States bankruptcy court, US District Court for District of Delaware
    Authors:
    Leslie W. Chervokas , Mark C. Ellenberg
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    The Banking Act 2009: counterparty rights and insolvent banks
    2009-03-10

    Historically, the United Kingdom has not had a specialised bankruptcy regime for dealing with the failures of financial institutions. Rather, these were handled under the same rules that applied to ordinary corporations.

    Filed under:
    United Kingdom, USA, Banking, Insolvency & Restructuring, Cadwalader Wickersham & Taft LLP, Share (finance), Security (finance), Liability (financial accounting), Liquidation, Broker-dealer, Subsidiary, Commodity Exchange Act 1936 (USA), Banking Act 2009 (UK), Federal Deposit Insurance Act 1950 (USA), HM Treasury (UK), Lehman Brothers, FSA, Bank of England
    Location:
    United Kingdom, USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    LBO payments for privately-held company not subject to avoidance
    2009-01-30

    Introduction

    Filed under:
    USA, Delaware, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Public company, Security (finance), Fraud, Interest, Privately held company, Limited partnership, Subsidiary, Title 11 of the US Code, United States bankruptcy court, Third Circuit, US District Court for District of Delaware, Trustee
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Delaware Bankruptcy Court decision in SemCrude poses setback to triangular set-off
    2009-01-16

    The United States Bankruptcy Court for the District of Delaware has ruled that a creditor cannot effect a “triangular” setoff of the amounts owed between it and three affiliated debtors, despite pre-petition contracts that expressly contemplated multiparty setoff. In re SemCrude, L.P., Case No. 08-11525 (BLS), 2009 WL 68873 (Bankr. D. Del. Jan. 9, 2009). The Court relied principally on the plain language of section 553(a) of the United States Bankruptcy Code, which limits setoff to mutual obligations between a debtor and a single nondebtor.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Debtor, Federal Reporter, Swap (finance), Debt, Limited partnership, Subsidiary, Title 11 of the US Code, Chevron Corporation, Second Circuit, Delaware Supreme Court, United States bankruptcy court, Seventh Circuit, US District Court for District of Delaware
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Debtor should consider whether creditor has set-off rights before rejecting executory contracts
    2008-04-25

    In CDI Trust v. U.S. Electronics, Inc. (In re Communications Dynamics, Inc.),1 the United States Bankruptcy Court for the District of Delaware addressed the issue of whether a rejection damages claim is subject to setoff against a pre-petition debt owed by the creditor to the debtor. The Court found that a rejection damages claim should be treated as if it arose pre-petition, and that the provisions of section 553 permitted, rather than prevented, the setoff of the rejection damages claim against the pre-petition debt.

    Background

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Debtor, Breach of contract, Limited liability company, Debt, Subsidiary, Exclusive right, Title 11 of the US Code, United States bankruptcy court, US District Court for District of Delaware
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Secured lender’s entitlement to postpetition interest reduced from contract rate
    2008-03-27

    In the January 2008 issue, we reported on In re Solutia, Inc.,1 decided by the United States Bankruptcy Court for the Southern District of New York. The Solutia court demonstrated how contractual entitlements of debt instruments may be altered in bankruptcy. There, the original issue discount of certain secured notes was found to be interest, rather than principal, causing a significant portion of the noteholders’ claims to be disallowed. In In re Urban Communicators PCS, Ltd.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Interest, Debt, Limited partnership, Default (finance), Secured creditor, Subsidiary, Federal Communications Commission (USA), SCOTUS, United States bankruptcy court
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP

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