Authored by Tom Bannister, Lauren Pflueger, Barry Russell and Emma Simmonds (Akin Gump Strauss Hauer & Feld LLP) When the Corporate Insolvency and Governance Act 2020 (CIGA) introduced the restructuring plan in England [1], comparisons with plans of reorganization under chapter 11 of the United States Bankruptcy Code (U.S. Bankruptcy Code) were inevitable. A […]
2022
Green and Sustainability-Linked Private Placements by European and UK Issuers
Authored By: Amy Kennedy, Chris Lawrence, Inderveer Hothi, Maggie Parker Yavuz, Mike Gustafson, Tom O’Connor, Bruce E. Simonetti, and Michael Roebuck of Akin Gump Environmental, social and governance (“ESG”) factors are becoming increasingly relevant across a range of financial investments. This has been driven in part by changes in the legal and regulatory landscape, including […]
Introducing the ACIC’s New Officers and Trustees
Contributed by Benjamin Cordiano (Morgan Lewis) — The ACIC is pleased to congratulate and welcome its newest officers and trustees. The following individuals were elected to the positions described below during the ACIC’s annual meeting. Officers for 2022-2023: President: Renée M. Dailey (Akin Gump Straus Hauer & Feld LLP) Vice President 1: Luke Weedon (Baker […]
2022 Fall Annual Meeting and Education Conference Summary
Recap of the 2022 Fall Annual Meeting and Education Conference (held October 20 & 21, 2022) Prepared by Andy Christianson (Reinhart Boerner Van Deuren) This year’s ACIC Fall Annual Meeting and Education Conference was held at the Boston Marriott Long Wharf, simulcast on the Whova platform for remote attendees, and co-chaired by Jennifer Fitzpatrick (Pacific […]
Southwest Update – U.S. Bank Nat’l Ass’n v. Lamell
Article courtesy of Clint Culpepper of Baker Botts A debtor challenged a notice of intent to accelerate by asserting a statute of limitations defense. The case was determined based on the sufficiency of notice to the debtor of the intent to abandon a previous acceleration notice. U.S. Bank Nat’l Ass’n v. Lamell, 2022 U.S. App. […]
ACIC Private Notes – October 2022
The Inflation Reduction Act’s Significant Expansion of Green Technology Industry Tax Credits: Overview and Potential Investment and Monetization Opportunities
Article Coursey of Amy Maloney, Authored by Casey S. August (Morgan Lewis) Signed into law on August 16, 2022, the Inflation Reduction Act of 2022 includes a wide range of legislation addressing climate change, healthcare, prescription drug pricing, and tax matters. Among its most significant features, the act includes approximately $370 billion in energy […]
Rocky Mountain Western – In re Shoot the Moon, LLC
All Settlements Final: District of Montana Bankruptcy Court Refuses to Set Aside Releases Alleged to Have Been Obtained by Fraud In re Shoot the Moon, LLC, 635 B.R. 568 (Bankr. D. Mont. 2022) Article Courtesy of David Simonds of Hogan Lovells Summary In In re Shoot the Moon, LLC, the United States […]
Rocky Mountain Western – In re PG&E Corp.
Ninth Circuit Holds that Unimpaired Creditors of Solvent Debtor Are Entitled to Postpetition Interest In re PG&E Corp., No. 21-16043, 2022 WL 3712478 (9th Cir. Aug. 29, 2022) Article Courtesy of David Simonds of Hogan Lovells Summary In In re PG&E Corp., a panel of the United States Court of Appeals for the […]
Rocky Mountain Western – In re Source Hotel, LLC
A Hotel That Is Not Operational and Non-Revenue Producing Is a Single Asset Real Estate Debtor In re Source Hotel, LLC, No. 8:21-BK-10525-ES, 2022 WL 2072673 (C.D. Cal. June 8, 2022) Article Courtesy of David Simonds of Hogan Lovells Summary In In re Source Hotel, LLC, the United States District Court for the […]
ACIC Private Notes – September 2022
Committee Reports – September 2022
Compiled by Tyler Margolis of ArentFox Schiff LLP Communications Committee The Communications Committee is responsible for communications among the College’s members and for communications between the College and the investment community at large. The Committee is responsible for preparing and publishing the College’s monthly newsletter, Private Notes. The monthly Private Notes includes summaries of recent […]
Southern Region Update – Tuggle v. Ameris Bank
Article courtesy of Jeff Dutson of King & Spalding Love and affection, while nice, do not constitute reasonably equivalent value for transfer of properties worth more than $1 million under Georgia’s Uniform Fraudulent Transfers Act. Tuggle v. Ameris Bank, 363 Ga. App. 600 (Ct. App. Ga. 2022) A borrower transferred two parcels of property to […]
Southern Region Update – Versailles Farm Home and Garden, LLC v. Haynes et al.
Article courtesy of Jeff Dutson of King & Spalding Overturning prior appellate court precedent, the Kentucky Supreme Court upheld the trial court’s and Court of Appeals’ determination that the Kentucky UCC does not require future advances be explicitly stated in a security agreement in order to be secured by such security agreement so long as […]
Southern Region Update – Whitten v. Clarke
Article courtesy of Jeff Dutson of King & Spalding Under Delaware law, requirement that a shareholder first make demand on the board before bringing suit is not excused on the basis of substantial likelihood of liability claim in the absence of showing that the board had actual knowledge of the alleged misconduct prior to the […]
Southern Region Update – Cherry Cmty. Org. v. Sellars
Article courtesy of Jeff Dutson of King & Spalding Debtor’s knowledge imputed to debtor’s co-principals, rendering land sale from debtor to debtor’s co-principals voidable under the UVTA as to debtor’s creditor. Cherry Cmty. Org. v. Sellars, 871 S.E. 2d 706 (N.C. 2022) A North Carolina nonprofit entity focused on the preservation and restoration of a […]
New England Update – In re CE Electrical Contractors, LLC
Article courtesy of Kevin P. Braun of Morgan, Lewis & Bockius LLP Debtor’s proposed plan of reorganization failed to satisfy the “best interests of creditors” test and Bankruptcy Code cramdown requirements due to plan’s proposed modifications to secured lender’s note, including paying secured lender less than the full amount of it’s claim while paying other […]
New England Update – Unibank for Savings v. 999 Private Jet, LLC
Article courtesy of Kevin P. Braun of Morgan, Lewis & Bockius LLP Purported senior lienholder failed to perfect its security interest in aircraft by not satisfying the FAA’s recordation requirements when it filed only a claim-of-lien letter with the FAA; competing lienholder with no knowledge of adverse claims qualified as a good faith purchaser for […]
ACIC Private Notes – Summer 2022
Mid-West Update – Peterson v. Colony American Finance Lender LLC et al. (In re Mack Industries Ltd. et al.)
Article Courtesy of Michael Robson (Greenberg Traurig) Peterson v. Colony American Finance Lender LLC, et al. (In re Mack Industries Ltd., et al.), 71 BCD 42, 2021 WL 6015700 (Bankr. N.D. Ill. 2021) U.S. Bankruptcy Judge Carol A. Doyle of the Northern District of Illinois (the “Court”) partially granted a motion to dismiss […]
Mid-West Update – Upper Explorerland Regional Planning Commission v. Vanhorn (In re Vanhorn)
Article Courtesy of Michael Robson (Greenberg Traurig) Upper Explorerland Regional Planning Commission v. Vanhorn (In re Vanhorn), 69 BCD 240, 2021 WL 741999 (Bankr. N.D. Iowa 2021) Overview Chief U.S. Bankruptcy Judge Thad J. Collins of the Northern District of Iowa (the “Court”) ruled that a business lender’s purchase-money security interest (“PMSI”) does […]
Mid-West Update – Lowry v. Southfield Neighborhood Revitalization Initiative, et al. (In re Lowry)
Article Courtesy of Michael Robson (Greenberg Traurig) Lowry v. Southfield Neighborhood Revitalization Initiative, et al. (In re Lowry), 71 BCD 36, 2021 WL 6112972 (6th Cir. 2021) Overview As the price paid by the city of Southfield, Michigan (the “City”) to acquire the debtor’s home bore no relationship to the property’s fair market […]
Mid-West Update – In re Nu-Cast Step & Supply Inc.
Article Courtesy of Michael Robson (Greenberg Traurig) In re Nu-Cast Step & Supply Inc., 639 B.R. 440 (Bankr. E.D. Mich. 2021) Overview The United States Bankruptcy Court for the Eastern District of Michigan (the “Bankruptcy Court”) ruled that a company that bought a liquidated concrete business’s assets may not reopen the debtor’s 4-year-old […]
Mid-Atlantic Update – Miller v. Fallas (In re J & M Sales Inc.)
Article Courtesy of Margaret G. Parker-Yavuz (Akin Gump Strauss Hauer & Feld LLP); Secondary Contributor Troy DeLeon (Akin Gump Strauss Hauer & Feld LLP) Miller v. Fallas (In re J & M Sales Inc.), Nos. 18-11801 (JTD), 20-50775 (JTD), 2022 Bankr. LEXIS 434 (Bankr. D. Del. Feb. 22, 2022) Overview: Bankruptcy trustee in […]
Mid-Atlantic Update – In re Ocean View Motel
Article Courtesy of Margaret G. Parker-Yavuz (Akin Gump Strauss Hauer & Feld LLP); Secondary Contributor Troy DeLeon (Akin Gump Strauss Hauer & Feld LLP) In re Ocean View Motel, No. 20-21165-ABA, 2022 Bankr. LEXIS 190 (Bankr. D.N.J. Jan. 25, 2022) Overview: Secured creditor objected to the cramdown of his claim in the confirmation […]
Mid-Atlantic Update – Tilton v. MBIA Inc. (In re Zohar III, Corp.)
Article Courtesy of Margaret G. Parker-Yavuz (Akin Gump Strauss Hauer & Feld LLP); Secondary Contributor Troy DeLeon (Akin Gump Strauss Hauer & Feld LLP) Tilton v. MBIA Inc. (In re Zohar III, Corp.), 639 B. R. 73 (Bankr. D. Del. March 25, 2022) Overview: Plaintiff creditors filed a complaint with the U.S. Bankruptcy Court for […]
Southern Update – DSLRPros, Inc. v. Lalo Copy
Article courtesy of Jeff Dutson of King & Spalding Individual shareholders signing a pledge agreement in their personal capacity agreed to be held personally liable for all amounts due under a loan agreement, including at the statutory rate of interest. DSLRPros, Inc. v. Lalo, — So.3d –, 2021 WL 5348890 (Nov. 17, 2021) An […]
Delaware Supreme Court Holds Transfer of Assets by Insolvent Company to its Creditors Required Shareholder Vote; Leaves Open Question of Statutory Requirements
Article authored by Larry G. Halperin, Joon P. Hong, and Helena Honig, Chapman and Cutler LLP Content kindly provided by Charles C. Calloway, Jr., Chapman and Cutler LLP In an opinion issued on June 15, 2022, the Delaware Supreme Court reversed a decision by the Chancery Court and found that a transfer by an […]
ACIC Private Notes – June 2022
ACIC Private Notes – Spring 2022
ACIC Private Notes – March 2022
ACIC Private Notes – February 2022
Spotlight on New ACIC Members Since February 2022
Article courtesy of Chiraag Kumar (MetLife) Among other new members who have joined since February 2022, the ACIC is thrilled to welcome: Taylor Courtade (Baker Botts) Gregory (Greg) LaHood (Mayer Brown) Eric Larson (Greenberg Traurig) Jeff Leider (Milbank) Clara Pauw (Chapman & Cutler) David Shim (Morgan, Lewis & Bockius) To learn more about our esteemed […]
UK Update – Corbin & King: First Judicial Considerations of the English Moratorium
Contributed by Tom Bannister and Lauren Pflueger (Akin Gump) _ Corbin & King: First Judicial Consideration of the English Moratorium In June 2020, the Corporate Insolvency and Governance Act 2020 (the Act) introduced a new standalone moratorium process in England, alongside the restructuring plan and certain temporary measures in response to the pandemic. Over 18 […]
Canadian Update: The Supreme Court of Canada Clarifies the Court’s Discretion to Stay Pre-Post Set-off Claims under the Companies’ Creditors Arrangement Act
Contributed by Danielle Maksimow (Norton Rose Fulbright Canada) _ Montréal (City) v. Deloitte Restructuring Inc. (City v Deloitte) Canadian Update: The Supreme Court of Canada Clarifies the Court’s Discretion to stay Pre-Post Set-off Claims under the Companies’ Creditors Arrangement Act Introduction In December 2021, the Supreme Court of Canada (the “SCC”) confirmed the majority decision […]
President’s Message – June 2022
Written by Chris Dallas (Pacific Life) _ So far, 2022 seems to be shaping up better, or at least different, than 2021 for many of us. As we start to return to the office, many of us are faced with the tradeoffs between working at home or in the office. On the plus side, it […]
Southwest Update – U.S. Bank N.A. v. Morris
Authored by: Andrew Thomison of Baker Botts Abandonment of acceleration resets the statute of limitations. In U.S. Bank N.A. v. Morris, No. 1:19-CV-00352-SH, 2021 WL 2870718, 2021 U.S. Dist. LEXIS 127559 (W.D. Tex. July 8, 2021), the court held that because a bank repeatedly abandoned the acceleration of a loan and related foreclosure proceedings, the […]
Southwest Update – Deutsche Bank Nat’l Trust Co. v. Saihat Corp.
Authored by: Andrew Thomison of Baker Botts Notice to other lienholders required when exercising foreclosure rights. In Deutsche Bank Nat’l Trust Co. v. Saihat Corp., No. 21-20002, 2021 WL 5830821, 2021 U.S. App. LEXIS 36131 (5th Cir. December 8, 2021) (unpublished opinion), the court held that a bank’s lien on a residence survived an HOA […]
Rocky Mountain/Western – In re Shoot the Moon, LLC
Authored by: David Simonds and Edward McNeilly (both of Hogan Lovells) Secured Creditor Forced to Pay Debtor’s Attorney’s Fees When Receivable Sale Is Treated as Disguised Usurious Financing SUMMARY In In re Shoot the Moon, LLC, 2021 WL 4144933 (Bankr. D. Mont.), the United States Bankruptcy Court for the District of Montana (the “Bankruptcy Court”) […]
Rocky Mountain/Western Update – In re S-Tek 1, LLC
Authored by: David Simonds and Edward McNeilly (both of Hogan Lovells) New Mexico Bankruptcy Court Holds That Lender’s Security Interest Does Not Extend to Proceeds of Commercial Tort Claim Settlement SUMMARY In In re S-Tek 1, LLC, 2021 WL 6101680 (Bankr. D. N.M. Dec. 23, 2021), the United States Bankruptcy Court for the District of […]
Rocky Mountain/Western Update – In re Figueroa Mountain Brewing
Authored by: David Simonds and Edward McNeilly (both of Hogan Lovells) Bankruptcy Court Denies Secured Creditor’s Right to Credit Bid for Assets Under Section 363(k) SUMMARY In In re Figueroa Mountain Brewing, LLC, 2021 WL 2787880 (Bankr. C.D. Cal. Jul. 2, 2021), the United States Bankruptcy Court for the Central District of California (the “Bankruptcy […]
When is a Guaranty Claim Reduced by Recovery in a Debtor’s Bankruptcy Case?
Authored by: Edwin E. Smith of Morgan Lewis Re-printed with permission. The original article can be found by clicking here. Consider a lender that extends a term loan in the amount of $1 million to an entity debtor. The loan is guaranteed by the debtor’s owner. If both the debtor and the guarantor become subject […]
Recap of the 2022 Spring Investment Forum
Authored by: Wendy Harlan (Unum Group) While this year’s theme for the Spring Forum, A Whole New World, emphasized how much things have changed (and indeed they have), for many, the return to the Ballroom at the Four Seasons Hotel in Chicago was a familiar and welcome opportunity for in-person attendees to meet with friends, […]
Committee Reports – March 2022
Committee Reports compiled by Sarah Olson of Thrivent. Communications Committee The Communications Committee is responsible for communications among the College’s members and for communications between the College and the investment community at large. The Committee is responsible for preparing and publishing the College’s monthly newsletter, Private Notes. Among other items of interest to the […]
Southern Update – Reynolds American Inc. v. Third Motion Equities Master Fund Ltd.
Article courtesy of Jeff Dutson of King & Spalding In first impression appraisal judgment case, with an underlying conflicted transaction, the Supreme Court of North Carolina gives wide latitude to trial courts determining ‘Fair Value’ under MBCA based N.C.G.S §55-13-22. Reynolds American Inc. v. Third Motion Equities Master Fund Ltd., 866 S.E. 2d 869 […]
Southern Update – Underwood v. Colony Bank
Article courtesy of Jeff Dutson of King & Spalding Issue of triable fact exists as to whether there was a mutual departure from the terms of a forbearance agreement when the bank repeatedly accepted late, partial payments and later sought to exercise remedies. Underwood v. Colony Bank, No. A21A1639, 2022 WL 414579 (Ga. Ct. […]
Southern Update – DSLRPros, Inc. v. Lalo
Article courtesy of Jeff Dutson of King & Spalding Individual shareholders signing a pledge agreement in their personal capacity agreed to be held personally liable for all amounts due under a loan agreement, including at the statutory rate of interest. DSLRPros, Inc. v. Lalo, — So.3d –, 2021 WL 5348890 (Nov. 17, 2021) An […]
New England Update – In re NESV Ice, LLC
Article courtesy of Kevin P. Braun of Morgan, Lewis & Bockius LLP United States Bankruptcy Court for the District of Massachusetts holds that under the standard for equitable subordination, the Debtors’ allegations that the Lender’s aggressive actions to advance the Lender’s acquisition of the Debtors’ properties harmed the Debtors and their other creditors were sufficient […]
New England Update – Precision Computer Servs., Inc. v. Newtown Sav. Bank
Article courtesy of Kevin P. Braun of Morgan, Lewis & Bockius LLP Connecticut Superior Court finds bank liable under Article 4A of the UCC for processing a fraudulent wire transfer request from email address impersonating a customer’s authorized representative due to bank’s failure to comply in good faith with its existing security protocols. Precision […]
Southern Update – SPI Holdco, LLC v. Mookerji
Article courtesy of Jeff Dutson of King & Spalding The Georgia Court of Appeals agreed that Siddhartha Mookerji, founder of Software Paradigms International Inc., was entitled to the compensation over the objection of SPI Holdco, LLC which was acquired in 2017 by private equity group Tower Arch Capital. SPI Holdco, LLC v. Mookerji, 864 […]
Southern Update – Ledford v. Keen
Article courtesy of Jeff Dutson of King & Spalding Making its best Eerie “guess,” Fifth Circuit finds that Texas law requires more than proof of undercapitalization to survive a defendant’s motion for summary judgment but leaves open the question of whether it is possible to pierce the veil of a non-profit corporation in Texas. […]
Southern Update – 623 Partners, LLC v. Bowers
Article courtesy of Jeff Dutson of King & Spalding As a matter of first impression, the Alabama Supreme Court held that the elapsing of a decade following entry of judgment and judgment creditor’s failure to revive the judgment rendered the fraudulent-conveyance claim moot. 623 Partners, LLC v. Bowers, 2021 WL 4129413 (Ala. 2021) In […]
Spotlight on New ACIC Members Since August 2021
Article courtesy of Nicholas Dumas (Aflac Global Investments) The ACIC is thrilled to welcome the following new members since August 2021: John Beck (Hogan Lovells) Nicholas Dumas (Aflac Global Investments) Inderveer Hothi (Akin Gump) Niki Khatami (SLC Management) Sarah Challen McKee (Akin Gump) Ron Silverman (Hogan Lovells) Sarah Stanton (Northwestern Mutual) Issa Yesufu (Northwestern Mutual) […]
Midwest Update – Sauter v. Brack
Article courtesy of Michael Robson (Greenberg Traurig, LLP) Sauter v. Brack, No. 20A MI 751, 2020 WL 5104870 (Ind. Ct. App. March 31, 2020) In a dispute between the guarantor of a promissory note that was subordinated to a previously granted commercial loan and the junior lender, the Indiana Court of Appeals (the “Court”) held […]
Mid-Atlantic Update – In re 3P Highstown, LLC
Article courtesy of Margaret G. Parker-Yavuz (Akin Gump) and Chanwon (Pio) Yoon (Akin Gump) In re 3P Highstown, LLC, 631 B.R. 205 (Bankr. D.N.J. 2021) Overview: On creditor Hightstown Enterprises, LLC’s motion seeking dismissal, the Bankruptcy Court for the District of New Jersey dismissed a voluntary chapter 11 petition of the debtor 3P Hightstown, LLC […]
Mid-Atlantic Update – In re Purdue Pharma, L.P.
Article courtesy of Margaret G. Parker-Yavuz (Akin Gump) and Chanwon (Pio) Yoon (Akin Gump) In re Purdue Pharma, L.P., 2021 Dist. LEXIS 242236 (S.D.N.Y. Dec. 16, 2021) Overview: The U.S. Bankruptcy Court for the Southern District of New York confirmed a chapter 11 plan of Purdue Pharma L.P. and its debtor affiliates which provided, among […]
Mid-Atlantic Update – In re Hertz Corp.
Article courtesy of Margaret G. Parker-Yavuz (Akin Gump) and Chanwon (Pio) Yoon (Akin Gump) Wells Fargo Bank, N.A. v. Hertz Corp. (In re Hertz Corp.), 2021 Bankr. LEXIS 3491 (Bankr. D. Del. Dec. 22, 2021) Overview: The Hertz debtors filed a motion to dismiss unsecured notes indenture trustees’ complaint seeking to recover make-whole premium and/or […]
Mid-Atlantic Update – In re Tribune Co. Fraudulent Conveyance Litig.
Article courtesy of Margaret G. Parker-Yavuz (Akin Gump) and Chanwon (Pio) Yoon (Akin Gump) Kirschner v. Large S’holders (In re Tribune Co. Fraudulent Conveyance Litig.), 10 F.4th 147 (2d Cir. 2021) Overview: Bankruptcy litigation trustee brought fraudulent conveyance and other claims on behalf of creditors against shareholders who sold their stock in the Tribune Company’s […]
Midwest Update – In re Hitz Restaurant Group
Article courtesy of Michael Robson (Greenberg Traurig, LLP) In re Hitz Restaurant Group, 616 B.R. 374, 2020 WL 2924523 (Bankr. N.D. Ill. 2020) In a bankruptcy proceeding relating to the interpretation of a force majeure clause in a restaurant lease (the “Lease”) in the Covid 19 pandemic (“Covid 19”), the United States Bankruptcy Court for […]
Midwest Update – In re Murray Metallurgical Coal Holdings, LLC
Article courtesy of Michael Robson (Greenberg Traurig, LLP) In re Murray Metallurgical Coal Holdings, LLC et al., 2020 WL 1307378, 68 BCD 143 (Bankr. S.D. Ohio 2020) Overruling an objection brought by two employee benefit funds, the Southern District of Ohio Bankruptcy Court (“Court”) held that a debtor in possession may pay prepetition claims of […]
2022 Spring Investment Forum Teaser
A message from the co-chairs of the 2021 Spring Investment Forum, Noelle Sproul (Nuveen) and Charles Calloway (Chapman & Cutler): On behalf of the Board of Trustees and the Education Committee, we invite you to join us for the ACIC’s 2022 Spring Investment Forum, to be held April 7-8, 2022 at the Four Seasons Hotel […]
ACIC Private Notes – January 2022
Meet the New Officers and Trustees – January 2022
Contributed by Benjamin Cordiano (Morgan Lewis) — Please click on the link below to learn more about the ACIC’s new leadership team: ACIC – Meet the New Officers and Trustees 2022
UK Update – Landlords and Leasehold Restructurings in the UK: What does 2022 hold?
Contributed by Tom Bannister (Akin Gump) Landlords and Leasehold Restructurings in the UK: What does 2022 hold? The COVID-19 pandemic has impacted a number of businesses in a number of ways. In the UK, the retail sector has been particularly hard-hit. Even before the pandemic, companies had been struggling due to (among other things) increased […]
Canadian Update: The Supreme Court of Canada Confirms the Broad Discretion the CCAA Vests in the Supervising Courts
Contributed by Danielle Maksimow (Norton Rose Fulbright Canada) — Canada v. Canada North Group Inc. 2021 SCC 30 Canadian Update: The Supreme Court of Canada Confirms the Broad Discretion the CCAA Vests in the Supervising Courts Introduction Last year, the Supreme Court of Canada (SCC) upheld the Alberta Court of Appeal’s majority decision in Canada […]
President’s Message – January 2022
Written by Chris Dallas (Pacific Life) — Happy New Year everyone! As we approach two full years in a strange new work environment, I wanted to say hello to everyone in the ACIC — and in particular our new members who joined over the last year or two (who many of us have not yet […]
