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    A will o' the wisp recedes: the rule against reflective loss applies to claims by an unsecured creditor
    2018-06-27

    Carlos Sevilleja Garcia v Marex Financial Limited [2018] EWCA Civ.1468

    David Lewis QC and Richard Greenberg report on a significant judgment concerning the rule against reflective loss (the “RL Rule”).

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Twenty Essex, Unsecured creditor, Court of Appeal (England and Wales)
    Authors:
    David Lewis , Richard Greenberg
    Location:
    United Kingdom
    Firm:
    Twenty Essex
    ‘Insolvency calls time on pursuing claims’
    2018-05-23

    Claims remain frequent in the construction industry, and so do insolvencies. In the wake of main contractor Carillion’s entry into liquidation, and rumours of forthcoming interest rate rises, it is worth looking at what effect different types of insolvency have on the ability to prosecute claims.

    Filed under:
    United Kingdom, Arbitration & ADR, Insolvency & Restructuring, Litigation, BPE Solicitors LLP, Unsecured debt, General contractor, Debt, Consent, Dispute resolution, Liquidation, Moratorium, Liquidator (law), Unsecured creditor, Construction contracts, Allied Irish Banks, Carillion, Insolvency Act 1986 (UK)
    Authors:
    Neil Mason
    Location:
    United Kingdom
    Firm:
    BPE Solicitors LLP
    New guidance from the High Court on section 6(a) of the ISDA Master Agreement (right to terminate following event of default)
    2017-12-19

    The High Court has recently considered the interpretation of Section 6(a) of the 1992 ISDA Master Agreement: Grant & Ors v WDW 3 Investments Ltd & Anor [2017] EWHC 2807 (Ch).

    Filed under:
    United Kingdom, Derivatives, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Liquidation, Unsecured creditor, International Swaps and Derivatives Association, High Court of Justice (England & Wales)
    Authors:
    Simon Clarke , Ceri Morgan
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    WellGrain Limited (In Administration)
    2017-05-30

    On 2 March Cambridgeshire-based merchant WellGrain went into administration, reportedly owing at least £15m to almost 300 creditors, many of those being farmers.

    The administrators' report has now been published and indicates that the unsecured creditors - including some 155 farmers - will expect to receive between 1.4 - 6.7 pence for every pound they are owed.

    It is an announcement which will no doubt be met with dismay by those creditors. However, it is not unusual that unsecured creditors of an insolvent company will receive little or no payment.

    Filed under:
    United Kingdom, Agriculture, Insolvency & Restructuring, Ashfords LLP, Unsecured debt, Unsecured creditor
    Authors:
    Katie Farmer
    Location:
    United Kingdom
    Firm:
    Ashfords LLP
    Ronelp Marine Ltd v STX Offshore & Shipbuilding Co Ltd [2016] EWHC 2228 (Ch)
    2016-10-27

    The English High Court were persuaded to lift the automatic stay imposed under the Cross-Border Insolvency Regulations (SI 2006/1030) in relation to Korean proceedings, to allow English litigation proceedings to be continued by an unsecured creditor.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Shipping & Transport, Ashfords LLP, Unsecured creditor, High Court of Justice (England & Wales)
    Authors:
    Alan Bennett , Olivia Bridger
    Location:
    United Kingdom
    Firm:
    Ashfords LLP
    Second Circuit joins Ninth in permitting general unsecured creditors to include attorneys’ fees as part of their claim
    2010-04-28

    In Ogle v. Fidelity & Deposit Co. of Maryland, 586 F.3d 143 (2d Cir. 2009), the Second Circuit has now become the second circuit court of appeals to recently conclude that general unsecured creditors may include postpetition attorneys’ fees as part of their claim when attorneys’ fees are permitted by contract or applicable state law.11

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Bond (finance), Debtor, Unsecured debt, Federal Reporter, Concession (contract), Default (finance), Attorney's fee, Unsecured creditor, Trustee, Second Circuit, United States bankruptcy court
    Authors:
    Bradley A. Cosman
    Location:
    USA
    Firm:
    Squire Patton Boggs
    New decision bars debtor’s choice of counsel despite the retention of conflicts counsel
    2010-06-25

    In a recent decision in the Chapter 11 case of Project Orange Associates, LLC1, the court confronted an important issue that often arises in bankruptcy cases: whether the use of conflicts counsel is sufficient to permit court approval under section 327(a) of the Bankruptcy Code of a debtor’s choice for general bankruptcy counsel that also represents an important creditor of the debtor in unrelated matters. Here, the conflict involved the debtor's largest unsecured creditor and an essential supplier.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Lowenstein Sandler LLP, Conflict of interest, Bankruptcy, Debtor, Waiver, Interest, Unsecured creditor, Title 11 of the US Code
    Authors:
    Sharon L. Levine , Wojciech F. Jung
    Location:
    USA
    Firm:
    Lowenstein Sandler LLP
    LBIE administrators extend September 17, 2010 proof of debt submission deadline for Consensual Approach participants
    2010-09-17

    Previously, on June 16, 2010, the Joint Administrators (the “Administrators”) of Lehman Brothers International (Europe) (“LBIE”) announced that they would be testing the feasibility of their so-called Consensual Approach to the resolution of LBIE’s unsecured creditor claims. They anticipated the Consensual Approach would be applicable to financial trading creditors ("FTCs") and conceptually outlined the Consensual Approach as follows:

    Filed under:
    USA, Banking, Insolvency & Restructuring, Schulte Roth & Zabel LLP, Unsecured debt, Dividends, Data, Option (finance), Debt, Precondition, Unsecured creditor, Federal Trade Commission (USA), Lehman Brothers
    Authors:
    Lawrence V. Gelber
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Bad medicine: court prevents pfizer from manipulating subsidiary’s bankruptcy to serve its own agenda
    2010-09-27

    A company facing a rash of tort lawsuits may try to use a dormant subsidiary’s bankruptcy as a tool to limit its exposure. That’s what Pfizer tried to do, and a New York bankruptcy judge sent them packing. This case is a warning to corporate parents that courts will not allow them to manipulate the process to use the bankruptcies of subsidiaries to further their own agendas. If you’re a creditor you can use this case as ammunition in reorganization disputes to show bad faith. Read on for a quick summary of what happened in the Pfizer case, and what you can learn from it.  

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Herrick Feinstein LLP, Bankruptcy, Debtor, Injunction, Liability (financial accounting), Good faith, Voting, Bad faith, Subsidiary, Unsecured creditor, Parent company, Pfizer, United States bankruptcy court
    Authors:
    Paul Rubin , Frederick Schmidt
    Location:
    USA
    Firm:
    Herrick Feinstein LLP
    Hines Nurseries, one of the largest plant growers in the US, files for bankruptcy in Delaware
    2010-10-16

    On October 12, 2010, Consolidated Horticulture Group, LLC and Hines Nursery LLC (the "Debtors"), filed petitions for bankruptcy in the United States Bankruptcy Court for the District of Delaware. According to the Declaration filed by Debtors' President and CEO, Stephen Thigpen (the "Declaration"), Debtors are one of the largest commercial nurseries in North America, selling shrubs and container-grown plants to commercial and retail customers. Decl.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Fox Rothschild LLP, Bankruptcy, Retail, Limited liability company, Debt, Liability (financial accounting), Unsecured creditor, Secured loan, Walmart, The Home Depot, United States bankruptcy court, US District Court for District of Delaware
    Authors:
    L. Jason Cornell
    Location:
    USA
    Firm:
    Fox Rothschild LLP

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