Shareholders who received nearly $8 billion from the Tribune Company leveraged buyout (LBO) do not have to give back that money as a constructive fraudulent transfer. Although the possibility remains that the creditors can recover this money through the pending intentional fraudulent transfer claims, which are much more difficult to prove, the Second Circuit recently held that the Bankruptcy Code preempts creditors from recovering under state constructive fraud theories when shareholders receive distributions under securities contracts effectuated through financial institutions.
Recently, lawyers for 50 Cent fought against the appointment of a bankruptcy examiner to investigate Instagram photos the rapper posted of himself lying next to piles of hundred dollar bills. In one picture, the bills spelled out the word “BROKE.” The humor of the photos was lost on the Office of the U.S. Trustee, who viewed the postings as disrespectful of the bankruptcy process and possible evidence that 50 Cent committed bankruptcy fraud by concealing assets from his creditors.
Coal is down. That’s not news to anyone who pays the even the slightest attention to the industry. Peabody Energy Corp., the largest U.S. coal mining company, just filed for Chapter 11 bankruptcy protection, following the path taken by Arch Coal, Inc., Alpha Natural Resources, Inc., Patriot Coal Corp.
New York Washington, D.C. Los Angeles Palo Alto London Paris Frankfurt Tokyo Hong Kong Beijing Melbourne Sydney www.sullcrom.com April 14, 2016 Related-Party Debt / Equity Regulations IRS Issues Proposed Regulations Intended to Limit Earnings Stripping but Which—if Finalized—Would Broadly Change the U.S. Tax Treatment of Related-Party Indebtedness SUMMARY On April 4, 2016, the IRS and Treasury Department issued proposed regulations (the “Proposed Regulations”) that would—if finalized in their current form—treat related-party debt as equity for U.S. tax purposes in certain circumstances.
Most companies that file bankruptcy end up liquidating, that is, ceasing business. Some bankrupt companies, however, even though they have accumulated substantial debt, have a customer base that will produce cash flow sufficient to fund future operating expenses. Federal bankruptcy law provides a procedure for a purchaser to buy a distressed seller out of bankruptcy. The procedure is known as a motion, or request, to sell assets free and clear of liens. Basically, a seller with an ongoing business in bankruptcy has the right to sell its assets (i.e., its business) to a purchaser.
In a unanimous decision arising out of the Tribune Media Company bankruptcy cases, a panel of the Second Circuit held that the safe harbor under section 546(e) of the Bankruptcy Code, which precludes avoidance of certain transfers by a
Second Circuit holds that Bankruptcy Code preempts creditors’ state law constructive fraud claims.
GAO has issued a report which noted the FDIC and Federal Reserve have developed separate but similar review processes for determining whether a resolution plan, often referred to as a “living will,” is “not credible” or would not facilitate a company’s orderly resolution under the Bankruptcy Code.
On January 1, 2016, Kentucky joined a growing movement among states across the country to revise fraudulent transfer statutes. Kentucky accomplished this by repealing its statutes on fraudulent transfers and preferential transfers (KRS 378.010 et seq.), and replacing them with the Uniform Voidable Transactions Act (“UVTA”) (KRS 378A.005 et seq.). The UVTA was designed to replace the Uniform Fraudulent Transfer Act (“UFTA”) that was previously adopted by 43 other states (which did not include Kentucky).
In a typical application of the veil piercing remedy, an equity holder is held liable for the debts of the corporate entity it owns and controls. The tests courts use for determining when the remedy is available vary, but generally veil piercing may occur only where the equity holder has abused the corporate form, by using its control over an entity to commit a fraud or other injustice.