In Mission Product Holdings, Inc. v. Tempnology, LLC, 587 U.S. ___ (2019), the Supreme Court held that a debtor’s rejection of a trademark license does not eliminate the licensee’s right to use the trademark through the completion of the contract, settling a split in the Circuits. The Supreme Court also ruled that the case was not moot, despite the bankruptcy estate’s distribution of all of its assets, which may have important implications for the developing jurisprudence on mootness in bankruptcy cases.

Continue Reading Mission Product: Trademarks? Yes. Mootness? No

In In re 1141 Realty Owner LLC, et al. , No. 18-12341 (SMB), 2019 WL 1270818 (Bankr. S.D.N.Y. March 18, 2019), Bankruptcy Judge Stuart M. Bernstein of the U.S. Bankruptcy Court of the Southern District of New York reaffirmed that upon sufficient contractual language, “make whole” prepayment premiums are enforceable under New York law even after loan acceleration. The court emphasized that the language of the contract provided for such a result and that this was an enforceable liquidated damages clause under New York law. Continue Reading Make whole prepayment premium enforceable even after loan acceleration

In a recent decision, EMA GARP Fund v. Banro Corporation, No. 18 CIV. 1986 (KPF), 2019 WL 773988 (S.D.N.Y. 21 February 2019), District Judge Katherine Polk Failla of the U.S. District Court for the Southern District of New York enforced a foreign reorganization plan in the United States on the basis of international comity, notwithstanding that no application for recognition and enforcement had been made under Chapter 15 of the U.S. Bankruptcy Code. Banro Corp. Inc., a public corporation headquartered in Canada, underwent a restructuring proceeding in Ontario under the Companies’ Creditors Arrangement Act (CCAA). The approved reorganization plan extinguished the interests of the company’s equity holders (including stockholders’ securities law claims against the company) and provided releases for the company and its directors and officers. Stockholders of the company chose not to participate in the CCAA proceeding and instead brought securities law claims against the company and its CEO in New York.

Continue Reading Foreign reorganization enforced in New York on international comity grounds

In a unanimous 25 February panel decision, the Second Circuit Court of Appeals held that the trustee liquidating Bernard L. Madoff’s investment firm can claw back billions in Ponzi scheme proceeds from investors who received the proceeds indirectly through non-U.S. “feeder funds” (funds that aggregate investor capital to invest in funds such as Madoff’s).

The ruling is significant because it affirmed the power of U.S. bankruptcy trustees to pursue estate funds to their ultimate destination, even if the paper trail involved transactions between non-U.S. entities. The effect of the ruling is to revive 88 adversary cases against international investors by Irving Pickard, the trustee of Bernard L. Madoff Investment Securities LLC (Madoff Securities) who is seeking to recover roughly US$4 billion in funds on behalf of customers who lost money in the Madoff Ponzi scheme.

Continue Reading New U.S. Second Circuit Court of Appeals ruling in Madoff liquidation extends the long arm of fraudulent transfer law

Recently finance partners Paul Mullen, Jo Robinson, and Tom Astle sat down with Joelle Jefferis, Debtwire to discuss what has happened so far in distressed direct lending scenarios and what can be expected in the future.  The short podcast covers areas such as how many unitranches have already been at restructuring stage, to how distressed talks differ when there are just two lenders at the table and also the problems that can arise from poor planning in the intercreditor.  Click here to listen to the podcast.

A cross-practice team led by partner Tom Astle has advised a syndicate of c.75 lenders under a bespoke €1.06bn super priority loan to distressed Croatian food producing and retail giant Agrokor (the “SPFA“) on an English law scheme of arrangement proposed by the company. The scheme of arrangement was approved by 97.92% in number of the lenders under the SPFA, representing 99.99% in value of scheme claims, at the creditors’ meeting earlier this week, and was sanctioned by Mr Justice Fancourt this morning.

Continue Reading Agrokor(king) success: Scheme of arrangement sanctioned by English court

When a company is placed in business rescue, employee claims continue to arise in places like the Commission for Conciliation, Mediation and Arbitration (the CCMA) and the Labour Court. And, there are cases where employees who have not received payment from their employer approach the Labour Court. The question that arises is how these claims are to be addressed.

Continue Reading Business rescue, section 133 and employment

Recently the German legislature passed a new law, exempting extraordinary profits created by the waiver of claims under restructurings from income tax liability. The amendment was necessary because the German Federal Tax Court had previously held the original administrative decree (which in a conceptually different manner avoided the tax burden on such profits) unlawful. This article gives a brief overview over the legislative history and the practical consequences of the amendment. Continue Reading Extraordinary profits created under restructurings according to German law – to be exempt or not to be exempt, that is the question!

The Recast Insolvency Regulation 2015/848 governs cross-border insolvency proceedings within the European Union. It provides in particular for the opening of the main proceedings by the jurisdiction of the member state where the centre of the debtor’s main interests is located (presumed to be the place of its registered office) and the opening of one or more secondary proceedings in the member states where the debtor possesses an establishment.

In the case at hand, insolvency proceedings were opened in 2012 in Romania against Izoplac, its headquarters being in Romania. In 2014, Izoplac was placed under judicial liquidation in France upon the request of a creditor. The court set the insolvency date and the Public Prosecutor petitioned for a ban on managing against the manager for failing to file for insolvency within 45 days. Continue Reading First insolvency proceedings opened held to have priority, with consequences regarding managers’ liability (Com. 7 févr. 2018, FS-P+I, n° 17-10.056)

The recently published report on the evaluation of the ESUG, the German law to facilitate the restructuring of companies, states that the changes introduced by the ESUG have been received positively overall, but that there is still room for improvement in many areas. Should the EU Restructuring Directive actually be adopted at the beginning of 2019, the legislator would have the opportunity to improve the ESUG legislation and implement the EU requirements for pre-insolvency restructuring proceedings in one bill. This would give the legislator the opportunity to further increase the global competitiveness of the German insolvency code and thereby strengthen the German market as such. Continue Reading Evaluation of the ESUG – essentially a success!?