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    Forfeiture of assets on insolvency: “it’s yours until you go bust”
    2011-09-22

    Belmont Park Investments Pty Limited v BNY Corporate Trustee Services Limited and another [2011] UKSC 38.

    The Supreme Court has clarified the extent to which it is possible for a contract to provide for a company or individual to lose assets on insolvency.  

    Summary

    Well-established rules are unchanged, so landlords can still forfeit leases on insolvency. In other cases, if a transaction is entered into in good faith and for valid commercial reasons, it is likely to be upheld.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Kennedys Law LLP, Share (finance), Bankruptcy, Patent infringement, Ex parte, Good faith, Bad faith, Asset forfeiture, Parent company, Pro rata, Supreme Court of the United States, UK Supreme Court
    Authors:
    Steven Fennell , Dino Paganuzzi
    Location:
    United Kingdom
    Firm:
    Kennedys Law LLP
    Court of Appeal upholds that assistance can be given to Australian court
    2011-08-12

    In New Cap Reinsurance Corporation Ltd & Anr v AE Grant & Ors, the Court of Appeal has upheld a first instance decision that section 426 of the Insolvency Act (IA) can be used to enforce a foreign monetary judgment in insolvency proceedings. However, the Court acknowledged that where there exists a statutory framework for the enforcement of foreign judgments, in this case enforcement pursuant to the Foreign Judgments (Reciprocal Enforcement) Act 1933 (the 1933 Act), then enforcement under s.426 of the IA must follow the requirements of the 1933 Act.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Insurance, Litigation, Locke Lord LLP, Reinsurance, Enforcement of foreign judgments, The Australian, Securities Act 1933 (USA), Supreme Court of the United States, Court of Appeal of England & Wales
    Location:
    United Kingdom
    Firm:
    Locke Lord LLP
    Court of Appeal reverses key aspects of High Court judgment on the treatment of client money in the Lehman insolvency
    2010-08-06

    In Lehman Brothers International (Europe)(in administration) v CRC Credit Fund Limited & Ors [2010] EWCA Civ 917 the Court of Appeal considered the first instance judgment of Mr Justice Briggs on the operation of the Client Money Rules (CASS) in relation to the insolvency of Lehman Brothers International (Europe)(LBIE).

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Locke Lord LLP, Share (finance), Dividends, Prima facie, Lehman Brothers, Supreme Court of the United States, Court of Appeal of England & Wales, High Court of Justice (England & Wales)
    Location:
    United Kingdom
    Firm:
    Locke Lord LLP
    Solvent schemes of arrangement revisited: the Scottish Lion revived
    2010-03-03

    Readers of our December 2009 issue will recall that we wrote about the Scottish court decision on the Scottish Lion Insurance Company scheme of arrangement. Just before this issue went to press the decision of the Scottish court of appeal (the Inner House of the Court of Session) on the issue of whether “creditor democracy” would be allowed to prevail or whether unanimity was required became known.

    Filed under:
    United Kingdom, Scotland, Insolvency & Restructuring, Insurance, Litigation, Locke Lord LLP, Supreme Court of the United States, Court of Session
    Authors:
    Peter Fidler
    Location:
    United Kingdom
    Firm:
    Locke Lord LLP
    Scottish Lion: UK court permits solvent scheme to proceed to merits hearing over U.S. policyholder objections
    2010-02-16

    For nearly a year, the Scottish Lion Insurance Company, Limited ( “Scottish Lion”), an insurance company that wrote coverage in the London insurance market, has been litigating with its creditors (policyholders), including many U.S. creditors, to permit it to enter into what is known under U.K. law as a solvent scheme of arrangement. A Scottish appellate court recently ruled in favor of Scottish Lion on a preliminary question of whether such a scheme could be sanctioned under U.K. law despite opposition from a minority of U.S.

    Filed under:
    United Kingdom, USA, Insolvency & Restructuring, Insurance, Litigation, Jenner & Block LLP, Liability (financial accounting), Voting, Precondition, Majority opinion, Supreme Court of the United States, Court of Session
    Authors:
    Brian S. Scarbrough
    Location:
    United Kingdom, USA
    Firm:
    Jenner & Block LLP
    Court of Appeal confirms that English courts have no jurisdiction to sanction Lehman Brothers scheme
    2009-11-09

    In a judgment handed down last week, the Court of Appeal upheld the decision of Mr Justice Blackburne (previously reported here) that the English courts have no jurisdiction to sanction the proposed scheme of arrangement for Lehman Brothers International Europe (LBIE) insofar as it purports to extinguish rights of beneficiaries under trusts.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Locke Lord LLP, Beneficiary, Lehman Brothers, Companies Act 2006 (UK), Supreme Court of the United States, Court of Appeal of England & Wales
    Authors:
    Helen Clark , Jeanne Kohler , M Machua Millett
    Location:
    United Kingdom
    Firm:
    Locke Lord LLP
    Sigma Finance case overruled – a return to pari passu?
    2009-11-02

    Summary: A Supreme Court decision on 29 October 2009 has overturned the previous Court of Appeal ruling in relation to Sigma Finance (in administrative receivership) (Sigma).

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Freshfields Bruckhaus Deringer, Supreme Court of the United States
    Location:
    United Kingdom
    Firm:
    Freshfields Bruckhaus Deringer
    Sigma Finance Corporation: substituting a commercial bargain through the guise of interpretation?
    2009-11-06

    The first appeal ruling from the newly formed UK Supreme Court concerned the construction of a clause setting out the distribution of assets in a collapsed structured investment vehicle (“SIV”). For the creditors attempting to salvage the remains of the SIV, and onlookers in similar situations, the judicial process has been a rollercoaster ride which has left them reeling.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Securitization & Structured Finance, White & Case, Security (finance), Market liquidity, Margin (finance), Subprime lending, Deed, Liability (financial accounting), Majority opinion, Trustee, Supreme Court of the United States, Court of Appeal of England & Wales, High Court of Justice (England & Wales), UK Supreme Court
    Authors:
    John Higham KC , John Reynolds , Sona Ganatra
    Location:
    United Kingdom
    Firm:
    White & Case
    Limiting chapter 11 as a tool for collective resolution of mass tort liabilities
    2024-07-22

    In Harrington v. Purdue Pharma, the US Supreme Court in a 5-4 decision held that the US Bankruptcy Code does not permit a debtor to confirm a chapter 11 plan that releases non-debtors from similar or related claims the creditors could assert directly against them.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, DLA Piper, US Congress, Supreme Court of the United States
    Authors:
    Craig Martin , Rachel Ehrlich Albanese
    Location:
    USA
    Firm:
    DLA Piper
    Post-Merit, the Second Circuit Reaffirms Its Ruling That State Law Avoidance Claims Are Preempted by the Section 546(e) Safe Harbor
    2020-04-15

    In In re Tribune Co. Fraudulent Conveyance Litig., 946 F.3d 66 (2d Cir. 2019), the U.S. Court of Appeals for the Second Circuit reaffirmed, notwithstanding the U.S. Supreme Court's ruling in Merit Mgmt. Grp., LP v. FTI Consulting, Inc., 138 S. Ct. 883, 200 L. Ed. 2d 183 (2018), its 2016 decision that creditors' state law fraudulent transfer claims arising from the 2007 leveraged buyout ("LBO") of Tribune Co. ("Tribune") were preempted by the safe harbor for certain securities, commodities, or forward contract payments set forth in section 546(e) of the Bankruptcy Code.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, Jones Day, US House of Representatives, Title 11 of the US Code, Supreme Court of the United States
    Authors:
    Mark G. Douglas , Brad B. Erens
    Location:
    USA
    Firm:
    Jones Day

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