BCLP Global Restructuring & Insolvency Developments

Global Restructuring & Insolvency Developments

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Singularis v Daiwa: UK banks beware!

Editors’ Note:  The Global Restructuring and Insolvency Developments team of BCLP presents this very concerning opinion for any financial institution that operates in the United Kingdom.  Specifically, in Singularis Holdings Ltd (in Official Liquidation) v Daiwa Capital Markets Europe Ltd (copy of the ruling is here), the Court of Appeal (England and Wales) considered a bank’s duty, commonly known as a Quincecare duty, to protect companies from fraud by authorised officers.  Robin Ganguly and Alexandra Kirby of Bryan Cave Leighton Paisner’s London office present the GRID readers with a summary and the key takeaways of this ruling.

Key points

  • Banks (and other financial institutions) have a duty to protect companies from fraud by authorised officers although the extent of the duty will depend upon the services being provided.
  • An objective test needs to be satisfied as to whether there were reasonable grounds for the

The Palmaz Plan: Investors Can Have Their Direct D&O Claims But Not The D&O Insurance Proceeds #WinningWhileLosing

In In re Palmaz Scientific Inc., the bankruptcy court for the Western District of Texas determined that a confirmed plan of reorganization would not stop a group of investors from pursuing direct (non-derivative) claims against directors and officers of the debtor companies because plan injunction language only covered claims against the debtors.  2018 WL 1036780, at *5 (Bankr. W.D. Tex. Feb. 21, 2018) (slip op. at 11).  Unfortunately for the investor plaintiffs, this proved to be a success without victory because the court went on to hold that the plan precluded the investors from using the D&O insurance proceeds to satisfy their claims.  Id. at *7 (slip op. at 14).  This case is both a cautionary tale for claimants and a potential boon for post-confirmation trustees.

When (and why) do D&O Insurance Proceeds become the coveted prize?

When D&O claims are asserted against a distressed company and/or its directors

U.K. Government Publishes Guidance on Corporate Governance in Insolvency

 

Editor’s Note: The April 1, 2018 merger of US-based Bryan Cave and UK-based Berwin Leighton Paisner provides us with far greater insight into cross-border insolvencies, an expertise to handle any restructuring, workout, or dissolution matters in the US, UK, Europe, Russia, UAE, Israel, China, and other points in the Far East.  For more information, contact Tessa or Sophie (the authors of this post), or visit here.

Following a number of corporate governance failures in situations of insolvency, the Government has published a consultation paper (located here) aimed at cracking down on directors and employers behaving irresponsibly.  “These reforms will give the regulatory authorities much stronger powers to come down hard on abuse and to make irresponsible directors bear the consequences of their actions.” Greg Clark

Responses are required by 11 June 2018.

Sale of Businesses in Distress

Although directors of an insolvent company must act in the best

From Across the Pond – Dissipation of Assets May be Tort Under English Law: Marex Financial Limited v. Garcia [2017] EWHC918

Editor’s Note from The Bankruptcy Cave:  Our good colleagues Robert Dougans and Tatyana Talyanskaya from BC’s London office published this earlier in the summer, and we could not wait to add it to your autumn reading list.  The lesson here is powerful – England, the birthplace of the common law, comes through again to right an injustice where traditional legal principles might otherwise fall short.  Many of you readers have often dealt with defendants playing a shell game with their assets.  The Marex decision provides a powerful response – an independent tort against the individuals who perpetrated the asset stripping, instead of a pursuing a daisy-chain of subsidiaries and affiliates, all bereft of assets.  We at The Bankruptcy Cave applaud this decision – for every right, there shall be a remedy! 

There is a joke that freezing injunctions are

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