Restructuring Plans and Chapter 11: A Transatlantic Perspective

Key Takeaways

1

The restructuring plan regime - including, for the first time under English law, cross-class cram down - was introduced in June 2020. Our experience with restructuring plans proposed to-date has been that the English courts have (for the most part) implemented this new tool flexibly, pragmatically and commercially.

2

On December 27, 2022, the IRS issued two notices providing key initial guidance for the new excise tax on corporate stock buybacks and the new corporate alternative minimum tax (CAMT). Both the excise tax and the CAMT were enacted as part of the Inflation Reduction Act that Congress passed in August 2022.¹

Over the past year, the ebb and flow of bankruptcy filings has been an interesting one. Through 11 months, the number of bankruptcy filings has decreased from 2021, which was already at its lowest level since the 1980s.

The total number of bankruptcy filings through November stands at 346,760. Based on a recent monthly uptick in both consumer and commercial filings, we should expect the year to end with approximately 385,000, a 4% decrease from the 401,291 filings in 2021.

“The [Subchapter V] Trustee shall— . . . facilitate the development of a consensual plan of reorganization.” 11 U.S.C. § 1183(b)(7).

That’s what we Subchapter V trustees are supposed to do.

Ok, fine. But how are we supposed to do that?

A facilitation tool that many Subchapter V trustees are using is this: Zoom facilitation meetings.

What follows is an explanation of how such meetings can work.

Initial Meeting

In late December 2022, the United States District Court for the District of Delaware issued an opinion affirming the Mallinckrodt bankruptcy court’s November 2021 decision that the debtor could discharge certain post-petition, post-confirmation royalty obligations for the sale of Acthar Gel.

Two recent decisions from circuit courts of appeal – the Fifth and Ninth – have addressed a question that does not arise often: in a solvent-debtor chapter 11 case, is the debtor required to pay post-petition interest (commonly referred to as “pendency interest”) to unsecured creditors in order to render such claims unimpaired? And, if so, what is the applicable rate of interest to use? Additionally, a subsequent decision from the Second Circuit, while not ultimately reaching the issue, favorably cited the recent Fifth and Ninth Circuit decisions.

The recent implosion of crypto firm FTX and its affiliates provides a case study for potential crypto exposure under traditional insurance policies. The FTX debacle is described herein is an introduction to a series of four articles on the potential liability exposure and coverage: Silent Crypto for D&O and Corporate Liability Insurance (Part I), Silent Crypto Exposure for Accountants (Part II), Silent Crypto Exposure for Lawyers (Part III), and Crime and Custody Coverage for Crypto Assets (Part IV).

On December 20, 2022, the Office of Science and Technology Policy (OSTP) issued a notice of request for information (RFI) on the regulation of biotechnology on behalf of the U.S. Food and Drug Administration (FDA), the U.S. Environmental Protection Agency (EPA), and the U.S. Department of Agriculture (USDA).

A crash in the cryptocurrency industry started this past spring, causing a significant number of cryptocurrency exchanges and related entities to seek bankruptcy protection, including the recent filing of one of the largest cryptocurrency exchanges, FTX. The volatility in the industry continues, with the subsequent filing of the cryptocurrency firm BlockFi and the crypto-mining company Core Scientific.

Crypto Basics

The U.S. Court of Appeals for the Ninth Circuit recently affirmed a bankruptcy court’s judgment in favor of a debtor who sought to avoid a judgment lien under California’s homestead exemption law.

In so ruling, the Ninth Circuit held that, when a judgment lien impairs a debtor’s state-law homestead exemption, the Bankruptcy Code requires courts to determine the exemption to which the debtor would have been entitled in the absence of the lien.