High Court Sanctions Restructuring Plans for Atento UK Ltd, Emphasizing Creditor Fairness and International Effectiveness

Citation: [2023] EWHC 3076 (Ch)
Judgment on

Introduction

In the High Court of Justice decision concerning Atento UK Limited and Atento Luxco 1, Mr. Justice Miles deliberated on the matter of sanctioning proposed restructuring plans under section 901F of the Companies Act 2006. This case provides a comprehensive examination of the legal principles and frameworks surrounding corporate restructuring in the UK insolvency context.

Key Facts

The case revolves around Atento UK Limited and Atento Luxco 1, together known as the Plan Companies, which are part of the Atento group engaged in customer relations and business process outsourcing services across 17 countries. The companies faced liquidity challenges and proposed restructuring plans to address their financial difficulties. The plans included an injection of US$76 million (Exit Financing) from Plan Creditors and an affiliate of an existing creditor. The restructuring was intended to avoid a likely Group-wide liquidation scenario, anticipated if the plans were not sanctioned.

A key component of the restructuring involved amending existing obligations, providing equity to certain creditors, and extinguishing certain debts in exchange for class rights and obligations. The restructuring plans were categorized in terms of the creditors affected: Class A to D Creditors, each with its respective recovery rates and options under the restructuring plans. The courts had previously sanctioned the convening of creditor meetings, where substantial majorities approved the plans.

Several legal principles underpin the judgment in this case:

  1. Sufficient Connection: A foreign company, such as Atento Luxco 1, must establish a sufficient connection with England to justify the court’s exercise of jurisdiction. This can be achieved when the liabilities varied or released by the restructuring plan are governed by English law, as seen in Re Vietnam Shipbuilding Industry Groups [2014].

  2. Statutory Requirements: There must be compliance with statutory requirements, including the requisite majorities at each creditor meeting and adherence to the terms of the convening order.

  3. Fair Representation: Creditors must be fairly represented, and the voting majority must act in a bona fide manner. In this case, high voting turnout and no evidence of voting being unrepresentative warranted a conclusion of fair representation.

  4. Reasonable Approval: It must be shown that a creditor could reasonably approve the plan, acting in their own interest. The restructuring is compared to the ‘relevant alternative’, typically liquidation, where creditors would receive less or no repayment.

  5. No Blot or Defect: The court must be satisfied there is no defect in the restructuring plan.

  6. International Effect: The court must consider whether the plan will have a substantial effect in other jurisdictions where the company operates or has assets. International effectiveness is informed by decisions such as Re ColourOz Investment 2 LLC [2020] and Re DTEK Energy BV [2022].

In this case, expert evidence from key jurisdictions suggested the plans would likely have substantial effect abroad, satisfying the court’s concerns about international effectiveness.

Outcomes

Mr. Justice Miles sanctioned the restructuring plans, finding that all legal benchmarks had been fulfilled. Millstone issues such as creditor representation, statutory compliance, and the plan’s reasonableness were all met to the court’s satisfaction. Additionally, the plans were determined to be probable in having a substantial effect in relevant international domains, a necessary determination for a group with global operations.

Conclusion

The case of Atento UK Limited & Anor represents a balanced application of UK insolvency law principles to a corporate restructuring scenario with international implications. The judgment upholds the critical balance of ensuring creditor fairness, adherence to statutory requirements, and managing the practical realities of a company’s international operations. This case reaffirms that courts will, in cases with substantial creditor approval, be slow to differ from the outcomes of creditor meetings, affirming the central role of creditor judgment in restructuring plans under the Companies Act 2006.

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