Morrison Foerster’s MoFo Restructuring Round-Up provides our analysis of the statutory, regulatory, legal and business-related developments in the insolvency and restructuring world. Our goal is to provide timely, helpful, insightful and digestible content that will help you keep abreast of the trends that are shaping the industry.<h2>MORRISON FOERSTER’S BUSINESS RESTRUCTURING & INSOLVENCY GROUP</h2>We counsel clients around the globe on corporate distress. We advise debtors, creditors, creditors’ committees, ad hoc committees, secured lenders, and specialist investors and are confident in advising on significant multi-jurisdictional cases. The breadth of our practice allows us to find solutions for a broad range of participants in distressed markets and to help them find their way through their most complex issues. We are creative, pragmatic problem solvers and we know the restructuring world well.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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The Honorable James M. Peck retired from Morrison Foerster upon his appointment as an International Judge of the Singapore International Commercial Court in January 2024. While at Morrison Foerster, Judge Peck chaired Morrison Foerster’s Cross-Border Restructuring practice and also headed the firm’s Mediation practice. Before joining Morrison Foerster, Judge Peck served as a U.S. Bankruptcy Judge for the Southern District of New York from 2006 to 2014, where he presided over the chapter 11 and SIPA cases of Lehman Brothers and its affiliates and a number of other major chapter 11 and chapter 15 cases and wrote multiple legal decisions that have helped define the impact of safe harbors on qualified financial contracts.By invitation, Judge Peck is a fellow of the American College of Bankruptcy and a member of the Panel of Recognized International Market Experts in Finance. He is a past president of the International Insolvency Institute, served on the board of governors of the National Conference of Bankruptcy Judges, and was judicial chair of the American Bankruptcy Institute’s annual New York City Bankruptcy Conference. Former Judge Peck currently chairs the Business Bankruptcy Advisory Committee for the Southern District of New York.Judge Peck co-chaired the ABI’s Advisory Committee on the Safe Harbors. He is a member of the Advisory Committee of the Asian Business Law Institute, is listed as a qualified member of mediation panels maintained by INSOL International, the Singapore Mediation Center, and the Singapore International Mediation Center, and has been included on the Panel of Arbitrators for Financial Services Disputes of the Hong Kong International Arbitration Center and the Panel of Arbitrators of the Singapore International Arbitration Center.Judge Peck has been retained on a number of occasions to furnish expert witness statements for submission to the High Court in London regarding issues of New York law, comity, and the recognition of main and non-main insolvency proceedings. He is also a frequent speaker worldwide on insolvency issues and has participated as a keynote speaker and a panel chair around the globe in conferences presented by numerous international organizations and law schools. These include INSOL International, the International Bar Association, INSOL Europe, and the National Conference of Bankruptcy Judges. He has authored articles published in the American Bankruptcy Institute Journal and International Insolvency & Restructuring Report, and is an editor of a recently published book titled The Art of the Ad Hoc.Before his judicial appointment in the Southern District of New York, Judge Peck was in private practice for over 35 years, concentrating much of that time on bankruptcy law, business reorganization, and creditors’ rights.

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Retired Senior Of Counsel

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The Honorable James M. Peck is head of Morrison Foerster’s Cross-Border Restructuring practice. Before joining Morrison & Foerster, former Judge Peck served as a United States Bankruptcy Judge for the Southern District of New York from 2006 to 2014. During his judicial service, former Judge Peck presided over the chapter 11 and SIPA cases of Lehman Brothers and its affiliates and a number of other major chapter 11 and chapter 15 cases. As a judge, he has written multiple legal decisions that have helped to define the impact of the safe harbors on qualified financial contracts.

James Peck

Lorenzo is global co-chair of the firm wide Business Restructuring + Insolvency Group. Lorenzo represents debtors, creditors, and creditors’ committees in complex bankruptcy cases, workouts, and litigation. His cases have spanned the United States as well as countless industries, such as airline and cargo transportation, mortgage origination and servicing, retail, banking and finance, energy, oil and gas, and telecommunications.Lorenzo has represented the official committee of unsecured creditors in numerous recent chapter 11 cases, including Peer Street, Incora/Wesco, Clovis Oncology, Valaris, Windstream Holdings, Inc., Cloud Peak Energy, Westmoreland Coal Company, Inc., The NORDAM Group, Inc., Avaya Inc., Armstrong Energy, Inc., 21st Century Oncology Holdings, Inc., Peabody Energy, Inc., Energy Future Holdings, Corp., and UCI International, Inc.Lorenzo’s deep experience and capabilities advising on precedent-setting bankruptcy and restructuring matters have not gone unnoticed. He is listed as a leading lawyer in Chambers USA and has also been recommended by The Legal 500 US. He was also designated by Turnarounds & Workouts magazine as an Outstanding Restructuring Lawyer for his accomplishments in 2016 and 2017.

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Lorenzo is global co-chair of the firmwide Business Restructuring + Insolvency Group. Lorenzo represents debtors, creditors, and creditors’ committees in complex bankruptcy cases, workouts, and litigation. His cases have spanned the United States as well as countless industries, such as airline and cargo transportation, mortgage origination and servicing, retail, banking and finance, energy, oil and gas, and telecommunications.

Lorenzo is global co-chair of the firmwide Business Restructuring & Insolvency Group. Lorenzo represents debtors, creditors, and creditors’ committees in complex bankruptcy cases, workouts, and litigation. His cases have spanned the United States as well as countless industries, such as airline and cargo transportation, mortgage origination and servicing, retail, banking and finance, energy, oil and gas, and telecommunications.

Lorenzo Marinuzzi

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London BRIG Update December 2023

The Administrator – An Officer of the Company?

European Uptier Transactions: Six Things to Look Out For

Liquidity Crises and Fiduciary Duties of Directors of Early-Stage Companies

High Court Rules that ISDA Bankruptcy-Related Events of Default Can Be Cured in Lehman Case

In the following blog post, the London BRIG team look back at the restructuring trends that helped shape the market in 2023, review the outlook for the upcoming year and introduce MoFo’s recent hires.<div data-reactroot=""><span style="position:relative;width:auto;padding:0 0 407.14%;height:0;top:0;left:0;bottom:0;right:0;margin:0;border:0 none" id="experience-63e2a4a4868bb" data-aspectRatio="0.24561404" data-converted-from="div"><iframe allowfullscreen="" src="https://view.ceros.com/mofo/brig-2022-trends-1-1/p/1?heightOverride=2850" style="position:absolute;top:0;left:0;bottom:0;right:0;margin:0;padding:0;border:0 none;height:1px;width:1px;min-height:100%;min-width:100%" frameBorder="0" class="ceros-experience" title="BRIG_2023 Trends" scrolling="no"></iframe><style>#embed-wrapper-242575584{padding: 0 0 2850px;}</style><style media="(min-width:48.0625em)">#embed-wrapper-242575584{padding: 0 0 2850px;}</style></div>

London BRIG Update

London BRIG Update

In the following blog post, the London BRIG team look back at the restructuring trends that helped shape the market in 2023, review the outlook for the upcoming year and introduce MoFo’s recent hires.

In a welcome clarification for administrators, the UK Supreme Court in the recent case of R (on the application of Palmer) v Northern Derbyshire Magistrates’ Court<a href="#_ftn1" dir="ltr">[1]</a>, held that an administrator appointed under the Insolvency Act 1986 (IA 1986) is not an “officer” of the company for the purposes of section 194(3) of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). Accordingly, an administrator was not liable to be prosecuted for failing to give notice to the Secretary of State of a proposed collective redundancy under section 194(1) TULRCA.What does TULRCA say?Section 193(2) of TULRCA mandates that an employer proposing to dismiss as redundant 20 or more employees at one establishment within a 90-day period needs to give notice to the Secretary of State at least 30 days before such dismissals are to take effect<a href="#_ftn2" dir="ltr">[2]</a>. Notice is given on form HR1. Failure to notify constitutes a criminal offence under section 194 of TULRCA.  Additionally, and crucially, section 194(3) states:Where an offence under this section committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person purporting to act in any such capacity, he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.FactsMr Palmer was one of three joint administrators appointed to West Coast Capital (USC) Ltd on 13 January 2015 and the following day made 84 employees redundant. The HR1 form was not filed until 4 February 2015. Proceedings were bought against Mr Palmer under section 194 of TULCRA for failing to notify.Both the Northern Derbyshire Magistrates' Court and Divisional Court held that an administrator was an officer for the purposes of section 194(3) of TULCRA not least because an administrator is appointed to manage the affairs, business and property of the company. Accordingly, Mr Palmer could be prosecuted for failing to notify. Mr Palmer appealed to the Supreme Court.Supreme Court decisionThe Supreme Court allowed Mr Palmer’s appeal and held that an administrator was not an officer of the company within the meaning of section 194(3) of TULCRA.In coming to this decision, the Court noted that in the absence of a definition of “officer” contained in TULCRA and there being no generally accepted definition, recourse was to the IA 1986 pursuant to which administrators are appointed. The court noted there were nearly 120 references to officer in the IA 1986 as originally enacted and some 170 in its current form. None of the references suggested that an administrator was an officer of the company. Importantly, some of the references clearly showed that an administrator was not an officer of the company.  The Court rejected the Divisional Court’s functional test approach, which looked at the words “other similar officer” to capture anyone responsible for managing the business of the company (and would therefore include an administrator). To the Supreme Court, Parliament would have used different language (and has done so in other legislation) if it had intended for the test to be functional. The Supreme Court further noted that long before section 194 TULRCA, the Court of Appeal held that managers and receivers appointed under a debenture were not officers of the company, even though in most cases they would have complete control over the day-to-day running of the business of the company.Who are “officers” then?The Supreme Court adopted what it called the “normal” meaning of “officer”, with the test being whether the person is “an officer within the constitutional structure of the body corporate”. So, whilst this does not include an administrator, it would include the company’s directors, managers, and secretaries.What are the implications?Redundancies can be a necessary part of saving a business as a going concern and/or to enable a sale of the distressed company to occur. Often it is left to the administrator to decide on and implement the redundancies in a short time frame, with the additional pressure that, if the administrator does not implement redundancies, they could be deemed to have accepted the employment contracts, which could then be considered an expense of the administration.The Supreme Court’s finding that an administrator is not an officer for the purposes of sections 193 and 194 of TULRCA comes as welcome relief to insolvency practitioners that they will not incur criminal liability for failing to submit the HR1 form in discharging their statutory duties where collective redundancies are necessary.This means that:<div data-reactroot=""><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt93e10e1506077ad2/656770e16f7bf41c5282fa1d/231129-graphic.PNG?format=auto&amp;quality=60" alt="graphic"/></div>Albert Khazen, London Trainee Solicitor, contributed to the drafting of this alert.<a href="#_ftnref1" dir="ltr">[1]</a> R (on the application of Palmer) v Northern Derbyshire Magistrates’ Court [2023] UKSC 38.<a href="#_ftnref2">[2]</a> The notice period is 45 days when the proposal is to dismiss 100 or more employees.

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Of Counsel

Oliver Spratt is Of Counsel based in the London office of Morrison Foerster. 

Oliver Spratt

In a welcome clarification for administrators, the UK Supreme Court in the recent case of R (on the application of Palmer) v Northern Derbyshire Magistrates’ Court

Whilst commonplace in the U.S., uptier transactions in which a borrower teams up with a subset of creditors to issue new “super priority” debt by amending or exchanging existing debt documents, have not been widely used in Europe. However, with increasing macro economic pressures and financial market instability, we may see more European borrowers taking advantage of flexibility in cov-lite debt documentation to implement liability management transactions as an alternative to, or even as part of, more formal restructurings. Differences in documentation, legal principles, and availability of other restructuring tools may mean liability management transactions might not occur in Europe in the same way as in the U.S. Here we set out some key things to look out for in European deals when considering uptier transactions. Intercreditor Arrangements<span class="embedded-entry redactor-component inline-entry" type="entry" data-sys-entry-uid="blt9287899135cba8a8" data-sys-entry-locale="en-us" data-sys-content-type-uid="image_content" sys-style-type="inline"><img class="dangerously-set-container__img-right" src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt6fa70714cfbc3ec8/6525d4c857e2334b7246292b/231010-file-icon.jpg?format=auto&amp;quality=60" alt="File icon" data-reactroot="">Watch out for European intercreditor agreements which set out the ranking and priority of each creditor class and can be difficult to amend without each class consenting. This can create an impediment, although not insurmountable through use of a turnover arrangement. Some intercreditors can provide for super priority debt via a “hollow” (i.e., unutilized) tranche so amendments may not be required. Document Terms and Majorities<span class="embedded-entry redactor-component inline-entry" type="entry" data-sys-entry-uid="bltd58a8854b763234b" data-sys-entry-locale="en-us" data-sys-content-type-uid="image_content" sys-style-type="inline"><img class="dangerously-set-container__img-right" src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt0e5ef79a39786bc9/6525d4c801a3378ccf5ea400/231010-checklist-icon.jpg?format=auto&amp;quality=60" alt="Checklist icon" data-reactroot="">There will need to be debt capacity in the debt documents or an ability to amend the same with majority consent. Some European credit agreements will incorporate indenture style covenants and allow this. In other credit agreements, permissions can be more tightly drafted and require greater majorities (such as 66 2/3% or more) to effect amendments.Debt Buy Backs<span class="embedded-entry redactor-component inline-entry" type="entry" data-sys-entry-uid="bltce02ffe98e1d29b8" data-sys-entry-locale="en-us" data-sys-content-type-uid="image_content" sys-style-type="inline"><img class="dangerously-set-container__img-right" src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/bltc0c3ce4705bfb592/6525d4c8b8038ab45830c705/231010-money-icon.jpg?format=auto&amp;quality=60" alt="Money icon" data-reactroot="">Check whether the credit agreement allows the borrower to buy back debt from a subset of creditors. It is not uncommon to find restrictions that require the borrower to make open market purchases on a pro rata basis to ensure all creditors in the loan facility are treated equally. Exit Consents<span class="embedded-entry redactor-component inline-entry" type="entry" data-sys-entry-uid="bltf0fce322163cf684" data-sys-entry-locale="en-us" data-sys-content-type-uid="image_content" sys-style-type="inline"><img class="dangerously-set-container__img-right" src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/bltcf09d23f4c84a349/6525d4c8fabb8d6771dc8070/231010-external-icon.jpg?format=auto&amp;quality=60" alt="External link icon" data-reactroot="">Exit consents can fall foul of English law. In one extreme case, an exit consent was considered an abuse of power by the majority on the minority, where the non-consenting minority recoveries were reduced to 0.00001% of their face value. An exit consent which does not impact recovery but removes other protections might be treated differently. Alternative Processes<span class="embedded-entry redactor-component inline-entry" type="entry" data-sys-entry-uid="blt6963eea09ffa4631" data-sys-entry-locale="en-us" data-sys-content-type-uid="image_content" sys-style-type="inline"><img class="dangerously-set-container__img-right" src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt5c0dbdac35f44f4a/6525d4c8b4577d81425d1117/231010-arrows-icon.jpg?format=auto&amp;quality=60" alt="Arrows icon" data-reactroot="">The availability of other non-bankruptcy restructuring tools such as UK schemes of arrangement and restructuring plans, which have manageable voting thresholds, ability to cram down, flexibility to provide new money, and are less open to challenge once sanctioned, make them very attractive alternatives to liability management transactions. Bridge Financing<span class="embedded-entry redactor-component inline-entry" type="entry" data-sys-entry-uid="blt06d16b9f039934d4" data-sys-entry-locale="en-us" data-sys-content-type-uid="image_content" sys-style-type="inline"><img class="dangerously-set-container__img-right" src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt0ee42de5f8258351/6525d4c8b4577d7e5b5d1119/231010-person-icon.jpg?format=auto&amp;quality=60" alt="Person icon" data-reactroot="">An uptier transaction could be used to provide much needed liquidity in anticipation of a full-scale restructuring. This bridge or “debtor-in-possession” style priority funding provided by an ad-hoc majority, can be less contentious when it leads to a wider financial restructuring that protects value for the creditors as a whole.

European Uptier Transactions: Six Things to Look Out For

Whilst commonplace in the U.S., uptier transactions in which a borrower teams up with a subset of creditors to issue new “super priority” debt by amending or exchanging existing debt documents, have not been widely used in Europe.

The FDIC receiverships of Silicon Valley Bank and Signature Bank have caused certain early-stage companies to face potentially crippling near-term liquidity issues. These liquidity issues may result in a company becoming insolvent. Therefore, boards of directors of such companies need to consider their fiduciary duties as well as steps that can be taken to mitigate risks.Read the <a href="https://www.mofo.com/resources/insights/230315-liquidity-crises-and-fiduciary-duties" target="_self">full client alert</a>.

Seth J. Kleinman is a partner and a member of the firm’s Business Restructuring + Insolvency Group. Seth has a dual presence in New York and Chicago.

Seth J. Kleinman

Seth J. Kleinman is a partner and a member of the firm’s Business Restructuring + Insolvency Group. Seth has a dual presence in New York and Chicago.

Seth Kleinman

Company Representations

Creditor Representations

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Vice Chair

Jennifer L. Marines, vice chair of Morrison Foerster, is trusted legal advisor for business restructuring, insolvency and complex bankruptcy litigation issues.

Jennifer L. Marines

Jennifer L. Marines | Business Restructuring + Insolvency

Jennifer Marines is a member of the Business Restructuring + Insolvency Group. She has experience representing chapter 11 debtors, creditors, investors, and other parties in interest in all aspects of complex corporate restructurings, including chapter 11 cases, out-of-court restructurings, and distressed acquisitions. Jennifer served as a law clerk to the Honorable Robert D. Drain, U.S. Bankruptcy Judge for the Southern District of New York.Jennifer has built a highly successful and peer-recognized practice in the restructuring and work-outs space, routinely representing companies and their boards in navigating complex distressed situations. Jennifer also has extensive experience advising official committees of creditors, negotiating and structuring financings and other commercial transactions, and representing clients seeking to purchase businesses and related assets out of chapter 11 proceedings. What is your favorite book? I have so many favorite books – reading is how I relax on my daily commute – but an all-time favorite, which I am rereading now, is the Secret History by Donna Tartt.What’s been the key to your success? The key to being successful is surrounding yourself with people who will support you, introduce you to new opportunities, and challenge you when you are not focused in the right direction. I have been fortunate to have several such people in my life, ranging from work colleagues who have mentored me from the time I was a summer associate to my three beautiful children, whose smiles at the end of the day make it all worthwhile.

Jennifer Marines

In re Thrasio Holdings, Inc., et al.

 In re PeerStreet 

 In re Wesco Aircraft Holdings, Inc.

In re Clovis Oncology, Inc., et al. 

In re AeroCentury Corp.

In re Valaris plc, et al.

In re Murray Energy Holdings Co., et al.

In re Windstream Holdings, Inc., et al.

In re Cloud Peak Energy, et al.

In re Westmoreland Coal Company, et al. 

In re The NORDAM Group, Inc., et al. 

In re 21st Century Oncology Holdings, Inc., et al. 

In re Avaya Inc., et al. 

In re UCI International, LLC, et al. 

In re Maxus Energy Corporation, et al. 

In re Peabody Energy, Inc., et al.

In re HOVENSA LLC 

In re Walter Energy Inc., et al. 

In re Patriot Coal Corporation, et al. 

In re Energy Future Holdings Corp., et al. 

In re Residential Capital, LLC, et al. 

In re MF Global Holdings Ltd., et al. 

In re Pinnacle Airlines Corp., et al.  

In re Los Angeles Dodgers LLC, et al. 

In re Mesa Air Group, Inc., et al.  

In re Caribbean Petroleum Corp., et al.  

In re Hawaiian Telcom Communications, Inc., et al.  

Innkeepers USA Trust 

Pacific Energy Resources Ltd.  

Lorenzo is global co-chair of the firm wide Business Restructuring + Insolvency Group. Lorenzo represents debtors, creditors, and creditors’ committees in complex bankruptcy cases, workouts, and litig

In re Sears Holdings Corp.

In re MatlinPatterson Global Advisers LLC

In re Gulf Coast Health Care

Unnamed Failed Hedge Fund

In re Trident Holding Co.

 In re SLS Capital S.A.

 In re Our Alchemy LLC

In re Miami Metals

In re GUE Liquidation Trust

In re Fairway Markets

In re Pacific Drilling S.A.

In re Perforadora Oro Negro, S. de R.L. de C.V. et al.

In re NineWest Holdings, Inc.

In re Tribune Company

In re Toisa Limited

In re Essar Steel Minnesota LLC

In re Maxus Energy Corporation

In re Energy Future Holdings Corp., et al.

The Honorable James M. Peck retired from Morrison Foerster upon his appointment as an International Judge of the Singapore International Commercial Court in January 2024.  

In re Clovis Oncology, Inc., et al.

In re CalPlant I Holdco, LLC

In re Grupo Aeroméxico, S.A.B. de C.V.

In re Avianca Holdings S.A., et al.

In re Murray Energy Holdings, Co., et al.

Ad Hoc Group of Education Management Corporation Term Lenders

Ad Hoc Group of Dream Center Education Holdings Term Lenders

Ad Hoc Group of Constitutional Bondholders of the Commonwealth of Puerto Rico

In re Real Industry, Inc.

In re Ciber, Inc., et al.

In re 21st Century Oncology Holdings, Inc., et al.

In re UCI International, LLC, et al.

In re Republic Airways Holdings Inc., et al.

 In re Maxus Energy Corporation

In re Patriot Coal Corporation, et al.

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Ben Butterfield is a partner in the Business Restructuring + Insolvency Group in the New York office of Morrison Foerster.  Ben has represented debtors, secured creditors, unsecured creditors, offic

Benjamin Butterfield