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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
    High Court sets aside a deed of release that had been executed by mistake
    2008-10-15

    In the case of Andrew Fender v National Westminster Bank PLC Judge Purle QC set aside a deed of release that had been executed in the mistaken belief that the company was no longer indebted to the bank.

    Filed under:
    United Kingdom, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Freshfields Bruckhaus Deringer LLP, Debt, Deed, Secured creditor, Capital punishment, Unsecured creditor, Volunteering, NatWest, High Court of Justice, Trustee
    Location:
    United Kingdom
    Firm:
    Freshfields Bruckhaus Deringer LLP
    Preferential transfer claims are not subject to pre-petition arbitration agreements
    2008-09-30

    In Bethlehem Steel Corp. v. Moran Towing Corp. (In re Bethlehem Steel Corp.),1 the United States Bankruptcy Court for the Southern District of New York held that preferential transfer claims were not arbitrable. The Court reasoned that because the avoidance powers did not belong to the debtor, but rather were creditor claims that could only be brought by a trustee or debtor-in-possession, they were not subject to the arbitration clauses in contracts to which the creditors were not parties.

    The Dispute and the Arbitration Clauses

    Filed under:
    USA, New York, Arbitration & ADR, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Security (finance), Arbitration clause, Liquidation, Debtor in possession, Title 11 of the US Code, US Congress, Second Circuit, United States bankruptcy court, Trustee
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Breach of fiduciary duty claims dismissed, but conduct might still support equitable subordination or recharacterization
    2008-06-30

    In Mukamal v. Bakes,1 the trustee of two trusts created under a chapter 11 plan of reorganization filed a complaint (the “Complaint”) against the former directors and officers of the debtors, the dominant shareholders of the debtors and the debtors’ accounting firm, alleging, among other things, various breaches of fiduciary duties.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Shareholder, Debtor, Unsecured debt, Collateral (finance), Arbitration clause, Waiver, Fiduciary, Audit, Board of directors, Trustee
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Post-transaction acts may support recharacterization of debt to equity
    2008-03-27

    In a recent adversary proceeding brought by a chapter 7 trustee to recharacterize a creditor’s claim from a debt claim to an equity interest, the United States Bankruptcy Court for the District of South Carolina denied a creditor’s motion to dismiss for failure to state a claim where the trustee had alleged that the lender assumed control over the corporation after the date of the credit agreement.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Shareholder, Debtor, Interest, Debt, Maturity (finance), Articles of incorporation, Annual general meeting, United States bankruptcy court, Fourth Circuit, Trustee
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Second Circuit upholds “earmarking” doctrine defense to preference action
    2008-02-26

    The next time you negotiate a settlement payment with a financially troubled party, you may want to keep in mind an ancient term related to livestock herding: earmarking. The concept may be somewhat antiquated, but the Second Circuit has recently confirmed that it is still viable – and can help you keep the settlement payment if the other party later files for bankruptcy.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Interest, Contempt of court, Subpoena, Second Circuit, Trustee
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Preservation of claims post-confirmation: uncertainty remains in the Fifth Circuit
    2011-10-12

    On July 22, 2011, Bankruptcy Judge Craig A.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Confidentiality, Bankruptcy, Debtor, Interest, Limited liability company, Motion to compel, Standing (law), United States bankruptcy court, Fifth Circuit, Trustee
    Authors:
    Matthew J. Oliver
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Bondholders of insolvent Argentine company denied relief by US Bankruptcy Court
    2008-01-31

    In a recent decision, the United States Bankruptcy Court for the Southern District of New York (the “U.S. Court”) exercised its abstention powers and dismissed an involuntary chapter 11 petition filed against an Argentine company, Compania de Alimentos Fargo, SA (“Fargo”).1 Fargo, a debtor in an insolvency proceeding in Argentina, had moved to dismiss the involuntary petition principally because its Argentine bankruptcy case was still pending.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Unsecured debt, Interest, Comity, Subsidiary, Secured loan, Deutsche Bank, Citibank, United States bankruptcy court, Trustee
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Bankruptcy Court for Southern District of New York prohibits triangular setoff provided for in safe harbored contract
    2011-10-12

    On October 4, 2011, the United States Bankruptcy Court for the Southern District of New York ruled that a contractual right of a triangular (non-mutual) setoff was unenforceable in bankruptcy, even though the contract was safe harbored. In re Lehman Brothers, Inc., No. 08-01420 (JMP), 2011 WL 4553015 (Bankr. S.D.N.Y. Oct. 4, 2011).

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Collateral (finance), Safe harbor (law), Swap (finance), Debt, Concession (contract), Standing (law), Liquidation, Common law, Title 11 of the US Code, UBS, Lehman Brothers, Delaware Supreme Court, United States bankruptcy court, US District Court for SDNY, Trustee
    Authors:
    Mark C. Ellenberg , Peter M. Friedman
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Dashed expectations yield no recovery in Solutia
    2008-01-31

    Creditors have recently made some headway in collecting the full amount to which they are contractually entitled pursuant to various debt instruments. In In re Calpine Corp.,1 reported in our summer 2007 newsletter, the Bankruptcy Court for the Southern District of New York permitted a secured creditor to collect damages (albeit in the form of an unsecured claim) caused by dashed expectations due to the early repayment of its debt.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Securitization & Structured Finance, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Unsecured debt, Interest, Debt, Maturity (finance), Refinancing, Secured creditor, United States bankruptcy court, Trustee
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP

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