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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Finance & Bankruptcy Law Blog
Up-to-date Information on Finance, Bankruptcy, & Creditors Rights
Proposed “Made Available to Trade” Determination for SOFR and SONIA Swaps
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
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
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
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*. See All Participant Memorandum (APM) (ginniemae.gov) and All Participant Memorandum (APM) (ginniemae.gov). Critics of the new financial requirements say they are badly flawed and ill-advised.
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CFTC Amends Clearing Requirements
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:
- eliminating the requirements to clear IRS referencing LIBOR and certain other interbank offered rates (“IBORs”); and
- introducing, in their place, new requirements to clear IRS referencing the relevant replacement risk-free rates, such as the Secured Overnight Financing Rate (“SOFR”) in the case of USD LIBOR.
California Approves Commercial Financing Disclosure Regulations
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 SB 1235. The regulations will become effective on December 9, 2022, and the final regulatory text can be found here. …
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The Role of the Independent Director in a Restructuring
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. In doing so, John addresses some of the most significant criticisms that have been levied against independent directors, including that independent directors often lack disinterestedness and are nothing more…
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Communicating Distress in the Digital Era
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 the preferred approach. This provides the opportunity to craft the message as well as address misinformation from leaks.
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Sheppard Mullin and M3 Partners Weigh In on the Potential Drivers of the Next Restructuring Cycle for the ABI Journal
Members of Sheppard Mullin’s Finance & Bankruptcy team recently co-authored an article entitled “When the Other Shoe Drops: Drivers of the Next Restructuring Cycle” with experts from leading restructuring advisory firm M3 Partners for the January 2022 issue of the American Bankruptcy Institute Journal. The article discusses the confluence of factors that Sheppard Mullin and M3 believe will contribute to an uptick in restructuring activity in the future, including the eventual tightening of credit markets and a variety of pre-pandemic and post-pandemic headwinds.
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Security-Based Swap Rules for End-Users
As of November 1, 2021, dealers in security-based swaps (“SBS”) whose dealing activity exceeds certain de minimis thresholds (e.g., gross notional amount of $3 billion for credit default SBS, $150 million for other SBS, and $25 million for SBS where the counterparty is a special entity) are required to register with the SEC as a security-based swap dealer (“SBSD”) and to comply with the SEC’s regulations applicable to SBS.[1] Many dealers exceeded these thresholds and filed for registration on or prior to November 1. Other dealers who exceed these thresholds later will be required to register at a future…
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NIGC Issues New Guidance on Financing Document Reviews and Declination Letters
The National Indian Gaming Commission (“NIGC”) issued guidance this week for tribes and tribal lenders who submit loan documents to the NIGC for a so-called “declination letter.” Bulletin No. 2021-4, “Submission of Loan Documents and Financing Documents for Review,” summarizes criteria the agency has developed in the last decade for determining whether loan documents constitute “management” contracts, which under federal law must be approved by the NIGC Chairman or they are void. The Bulletin states that while the Office of General Counsel will continue to review loan documents and issue opinions as to whether the documents provide the lender with…
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Seven Commandments for the Financially Distressed Company
Most restructuring professionals will tell you that there is no “typical” restructuring. That is absolutely true. Every financially distressed business is different and the character and direction of its restructuring will be highly dependent upon, among others, its capital structure, its liquidity profile, and the level of support it can build for its reorganization among key stakeholder bodies. Nevertheless, there are some important similarities in the way that any company should initially address a distressed situation. We discuss below a variety of key tasks, or “commandments,” that we recommend any company should undertake as soon as it anticipates possible financial…
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LSTA Publishes Term SOFR Concept Document
On August 25, the LSTA published its Term SOFR Concept Document (the “Term SOFR Concept Document”)[1]—the latest addition to its suite of SOFR-based Concept Documents.
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Debt-Collection Reforms Draw Congressional Focus Post-COVID
In April 2021, House Financial Services Committee Chair Maxine Waters (D-Calif.) introduced H.R. 2547, the “Comprehensive Debt Collection Improvement Act.” This article examines the bill’s proposed reforms, takes a closer look at a few of the key provisions related to nonjudicial foreclosure, student loan and servicemember debt-collection practices, and considers its prospects for passage in the Senate. With respect to nonjudicial foreclosures, the legislation seeks to amend the definition of “debt collector” under the FDCPA to include entities that conduct non judicial foreclosures. As for student loans, the bill proposes an amendment that would slightly expand private student loan protections…
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ARRC Formally Recommends Term SOFR
As expected, on July 28, 2021, the Alternative Reference Rates Committee (ARRC) formally recommended the CME’s SOFR Term Rate. The SOFR Term Rate is known in advance of the related interest period and provides an indicative, forward-looking measurement of SOFR based on market expectations implied from leading derivatives markets. In this respect, the SOFR Term Rate functions in a manner similar to today’s LIBOR rates. In contrast, the Daily Simple SOFR or Daily Compounded SOFR used for interest periods beyond overnight can only be determined in arrears. The SOFR Term Rate thus facilitates in a significant way the transition away…
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