Recast EU Insolvency Regulation Comes into Force

 

On 26 June 2017, the Recast EU Insolvency Regulation (Council Regulation (EC) No. 2015/848) came into force. It will apply to all relevant insolvency proceedings (although existing and ongoing proceedings will continue to be bound by the EU Insolvency Regulation (Council Regulation (EC) No. 1346/2000) (the “EIR”)). The Recast EU Insolvency Regulation will have direct effect in all EU member states (except Denmark).”

The Recast EU Insolvency Regulation is an update of the EIR following ten years of insolvency practice and experience since the EIR’s implementation. Largely, it represents a codification of well-established insolvency practice developed across the EU under the EIR however, it also introduces new innovative steps which, it is hoped, mark a step forward in light of learnings under the EIR to address perceived issues or “gaps” in existing legislation. READ MORE

Orrick Assists in the Restructuring of Leading French Digital Media Group SoLocal

Orrick assisted GLAS Trust Corporation Limited in the recent financial restructuring of SoLocal Group S.A., the leading French provider of digital local media and marketing.

The main creditors involved were the lenders of around €835 million in senior secured bank debt and the holders of €350,000,000 8.875% senior secured notes due 2018 (the “Notes”). The restructuring agreed between the company, its shareholders and its creditors involved a partial cash prepayment of debt and a swap for new notes, warrants, convertible notes and equity. Shareholders received three free shares for every two existing ones held. Overall the restructuring resulted in a two-thirds reduction in debt (from €1.158 billion to €398 million) and greatly reduced leverage ratio. READ MORE

Debtwire European Distressed Debt Market Outlook 2017

 

The 2017 Debtwire European Distressed Debt Outlook report surveyed 100 distressed investors and 30 private equity funds to establish the outlook for 2017.  Jointly sponsored by Orrick and Greenhill, the report predicts that European restructurings will hit their next peak in 2017, with respondents citing interest rate rises (22%), geopolitical conflict (21%) and Brexit (16%) as the most important macroeconomic factors driving this trend.  READ MORE

The Gorsuch Nomination: The Return of the Business Friendly Court?

 

President Donald Trump nominated Judge Neil Gorsuch, a federal appellate judge on the Tenth Circuit Court of Appeals, to fill the Supreme Court seat of Justice Antonin Scalia. Our Supreme Court and appellate team, led by partner Bob Loeb, took a look at Judge Gorsuch’s track record as a judge on key business issues like securities litigation, arbitration and bankruptcy, to speculate on his future as a potential justice. To read the full article, please click here.

Orrick’s Marc Levinson Compares Chapter 9 to Chapter 11 for the Federal Judicial Center Website

 

Orrick Restructuring Senior Counsel Marc Levinson is one of the chapter 9 experts assisting in the preparation of a chapter 9 manual for bankruptcy judges and court clerks that has been posted on the website of the Federal Judicial Center, an arm of the United States Courts which educates federal judges.  Among other things, the manual will discuss the differences between chapter 9 and chapter 11 bankruptcies. The below video comparing chapter 9 v. chapter 11 was prepared at the FJC’s request that Marc draw upon his experience representing the cities of Stockton and Vallejo, California, in their chapter 9 cases. It has been posted on the FJC’s website, but note that access to the video on that website is restricted to judges. READ MORE

Supreme Court Hears Oral Argument in Jevic on Whether Distribution of Settlement Proceeds May Depart From Statutory Priority Scheme

 

The United States Supreme Court heard oral arguments on December 7, 2016 in Czyzewski v. Jevic Holding Corp. The case poses a question that has divided the Second, Third, and Fifth Circuits: Whether a bankruptcy court may authorize the distribution of settlement proceeds in a way that departs from the statutory priority scheme in the Bankruptcy Code, including through a so-called “structured settlement.” READ MORE

Sixth Circuit Finds Bankruptcy Court Cannot Force City to Provide Services in Chapter 9

On November 14, 2016, the United States Court of Appeals for the Sixth Circuit held that courts in chapter 9 cases lack authority to order a municipal debtor to provide services to its constituents. Affirming the bankruptcy court’s dismissal of customers’ claims arising from the termination of their water service by the Detroit Water and Sewerage Department, the Sixth Circuit held that section 904 of the Bankruptcy Code prohibits a chapter 9 court from entering orders that “interfere” with a municipality’s “political [and] governmental powers.” In re City of Detroit, Mich., No. 15-2236, 2016 WL 6677715 (6th Cir. Nov. 14, 2016). READ MORE

Third Circuit Departs from Momentive and Reinstates EFIH Noteholder Make-Whole Claims Causing Uncertainty over EFH’s Ability to Exit Bankruptcy

Recently, the Third Circuit reversed decisions issued by the Delaware Bankruptcy and District Courts and permitted first and second lien noteholders of Energy Future Intermediate Holding Company LLC and EFIH Finance Inc. to receive payment of a make-whole premium. In re Energy Future Holdings Corp., No. 16-1351 (3d Cir. Nov. 17, 2016).  The decision, which is largely grounded in New York law, departs from recent controversial decisions issued by the Bankruptcy Court and District Court for the Southern District of New York in the Momentive bankruptcy, which we have previously discussed here and here.  In Momentive, the courts reached the opposite conclusion on substantially similar facts.  In Momentive, the courts reached the opposite conclusion on substantially similar facts.  In addition to creating a split between the Third Circuit and the Southern District of New York, the ruling creates uncertainty regarding the ability for the debtors in the long-running EFH bankruptcy to confirm their proposed chapter 11 plan. READ MORE

Orrick’s Marc Levinson Publishes Chapter 11 v. Chapter 9 Checklist in Practical Law

 

In a recent article for Practical Law Bankruptcy, Restructuring Senior Counsel Marc Levinson prepared a comparison chart providing an overview of the major facets of a Chapter 9 municipal bankruptcy and comparing them to those of a traditional Chapter 11 bankruptcy. The Chart examines, among other crucial issues, commencement of the case, eligibility requirements, case administration, preference actions and plans. To read the full chart, please click here.

Orrick Lawyer Co-Authors Article Addressing Unique Confirmation Issues in Nonprofit Cases

 

Orrick’s Evan Hollander co-authored an article for The Norton Annual Survey of Bankruptcy Law  (2016 Edition) addressing unique confirmation issues faced by nonprofit debtors in Chapter 11. The article addresses the applicability of the absolute priority rule, distinctive feasibility issues, and appropriate comparators when considering the best interests test in a nonprofit case. The authors identify emerging trends in nonprofit bankruptcy jurisprudence and suggest legislative action to help clarify certain ambiguities in the law. Read the full article here.