BankruptcyandRestructuringBlog

Supreme Court Finds Bankruptcy Code Abrogates Tribal Sovereign Immunity

06/16/23

The U.S. Supreme Court ruled on Thursday that because Indian tribes are indisputably governments, the Bankruptcy Code unmistakably abrogates their sovereign immunity to bankruptcy court proceedings.

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SEC Off-Channel Communications Sweep

05/25/23

Over the last several years, the Securities and Exchange Commission (the “SEC”) and the Commodities Futures Trading Commission (“CFTC”) have been laser-focused on the use of so called “off-channel communications” in the financial services industry. On the theory that employees’ use of personal devices to communicate about business matters violates the “books and records” rules as these communications are not saved in company systems, regulators have conducted intrusive and extensive investigations requiring employees to turn over their personal devices for review.

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Proposed “Made Available to Trade” Determination for SOFR and SONIA Swaps

04/26/23

On April 12, 2023, Tradeweb’s Swap Execution Facility, TW SEF LLC, filed a self-certification[1] for certain overnight index swaps (OIS)[2] referencing USD Secured Overnight Financing Rate (“SOFR”) or GBP Sterling Overnight Index Average (“SONIA”) to be “made available to trade” (“MAT”) on exchange.

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SEC’s Proposed Conflicts of Interest Rule May Impede Hedging

04/14/23

Critics are warning that the SEC’s recently proposed rule (the “Proposed Rule”) prohibiting conflicts of interest in asset-backed securities (ABS) transactions may impede the ability of financial institutions, broker-dealers and others to enter into interest rate hedges and other risk-mitigating transactions.

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Synthetic USD LIBOR

12/20/22

As market participants prepare to submit comments on the recent proposal of the UK’s Financial Conduct Authority (the “FCA”) (available here) to require the temporary publication of a “synthetic” 1-, 3- and 6-month USD LIBOR, some have voiced concern that such a compelled publication of a synthetic USD LIBOR could precipitate a wave of litigation over whether certain U.S. law-governed contracts will be able to fall back to contractually agreed alternative rates in June 2023.

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More Trouble Ahead for the Mortgage Industry If Ginnie Mae’s Risk-Based Capital Requirements Take Effect

12/19/22

The new Ginnie Mae issuer financial requirements, first published on August 17, 2022 in APM 22-09 by joint announcement with the Federal Housing Finance Agency[1], are scheduled to take effect in two parts beginning September 30, 2023*.

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CFTC Amends Clearing Requirements

08/25/22

On August 12, 2022, the CFTC issued a final rule modifying its clearing requirement for interest rate swaps (“IRS”).

The final rule updates the types of IRS required to be submitted to a registered derivatives clearing organization (“DCO”) for mandatory clearing by:

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California Approves Commercial Financing Disclosure Regulations

06/16/22

On June 9, the California Office of Administrative Law (OAL) approved the Department of Financial Protection and Innovation’s (DFPI) proposed commercial financing disclosure regulations issued pursuant to

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The Role of the Independent Director in a Restructuring

03/23/22

The practice of appointing one or more independent directors to the boards of distressed companies has not only proliferated in recent years, but has become the subject of increasing controversy. In this episode of the Restructure THIS! podcast, John Dubel discusses, among other things, the proper role of an independent director in a restructuring and weighs in on whether he believes the current independent director framework in chapter 11 is broken.

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Communicating Distress in the Digital Era

03/15/22

During times of corporate uncertainty, the company’s message to customers, vendors and employees can either instill confidence or foster anxiety. This holds true more than ever in the digital and social media era. In a chapter 11 scenario, then, engaging with, rather than dodging, press calls may be preferred approach.  This provides the opportunity to craft the message as well as address misinformation from leaks.

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