The Bankruptcy Court for the Southern District of New York recently handed down a decision declining to grant a creditor’s motion to reopen a debtor’s chapter 7 case and vacate a discharge order. Although the legal predicates at issue in that case may not be relevant to all practitioners, the case itself serves as a valuable reminder about “best” practices and provides a number of teachable moments for attorneys of all ages and practice areas.

Background

Last week, we reviewed the recent decision of the Bankruptcy Court for the Southern District of New York that granted recognition to the Brazilian bankruptcy proceedings of three entities in the OAS Group (“OAS”), a Brazilian infrastructure enterprise. Part I of this series focused on the facts of the OAS cases and the objections to recognition interposed by two signific

“[T]hey would sell their possessions and goods and distribute the proceeds to all…” Acts 2:45

In an opinion that mostly flew under the radar in 2021, Judge Christopher Sontchi from the Bankruptcy Court for the District of Delaware (the “Court”) found investment firm Yucaipa American Alliance Fund I, L.P. and Yucaipa American Alliance (Parallel) Fund I, L.P.

A fundamental tenet of bankruptcy law is that a debtor will have the ability to get a fresh start once it emerges. A company’s ability to discharge liabilities is among the primary drivers for seeking protection under chapter 11 and, thus, it is of no surprise that ensuring necessary steps are taken for a successful discharge is of utmost importance. Absent a successful discharge of prepetition claims, the reorganized debtor may be saddled with additional liabilities, reducing value for plan stakeholders. The recent Third Circuit unreported decision – Sweeney v.

In an important decision issued at the end of August, the United States Court of Appeals for the Third Circuit, in In re Tribune Co., Case No. 18-2909 (3d Cir. Aug. 26, 2020), held that subordination agreements need not be strictly enforced when confirming a chapter 11 plan pursuant to the Bankruptcy Code’s cramdown provision in section 1129(b)(1). In its decision, the Third Circuit also encouraged bankruptcy courts to apply “a more flexible unfair-discrimination standard” and set forth eight guiding principles to aid in that effort.

syncreon Group Holdings B.V. (the “Company” and together with its subsidiaries, “syncreon”) completed its landmark financial restructuring today. As has been widely reported, syncreon’s reorganization is perhaps the first-ever use of an English scheme to restructure debt issued by a U.S.-based global enterprise. This also appears to be the first time that CCAA recognition of an English scheme has been granted.

The Restructuring

All too often the task of procuring and renewing D&O insurance at a portfolio company is assigned to the portfolio company’s CFO or Controller, who employs an insurance broker to find the best price for the amount of coverage deemed appropriate by the broker. When such insurance is procured and thereafter renewed, the CFO/Controller simply reports to the board the fact of the procurement/renewal and few questions about the terms of coverage are discussed at the board level. This can be a big mistake.

The Bankruptcy Code’s cramdown provisions are a powerful tool for debtors in the plan confirmation process. Pursuant to section 1129(a)(10) of the Bankruptcy Code, a plan may be confirmed if, among other things, “at least one class of claims that is impaired under the plan has accepted the plan.” Once there is an impaired accepting class, and assuming certain requirements are met, the plan may then be “crammed down” on all other classes of impaired creditors that reject the plan and those creditors will be bound by the terms of a plan they rejected.

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