The U.S. Court of Appeals for the Fifth Circuit held on Feb. 10, 2010, that a corporate debtor’s pre-bankruptcy severance payments to its former chief executive officer (“CEO”) were fraudulent transfers. In re Transtexas Gas Corp., ____ F.3d _____, 2010 BL 28145 (5th Cir. 2/10/10). Because of its holding “that the payments were fraudulent under the Bankruptcy Code,” the court did “not consider other possible violations, including [the Texas Uniform Fraudulent Transfer Act] or [Bankruptcy Code] Section 547(b) [preferences].” Id. at *5.
Traditionally, when a business begins to flounder and take on enough metaphorical water to sink, the officers and directors can find themselves in a fiduciary relationship with the company's creditors. However, in Wisconsin, an opinion was recently published by an appellate court which determined that no fiduciary duty attaches until such time as the sinking company is both insolvent and not a "going concern". In other words, it is only when this ship has sunk that a fiduciary duty will attach.
A recent decision in the Bankruptcy Court for the Southern District of New York (the “Court”) in the Lehman case has extended the unenforceability of ipso facto clauses to a provision triggered by the bankruptcy filing of an affiliate of a contractual party.
In 2009, there were 140 failed banks. So far this year, 16 more banks have been seized by the FDIC. There are 702 banks currently on the FDIC's troubled banks list, and regulators and analysts predict that several hundred of those likely will fail over the next two years.
Today, the New York State Banking Department closed The Park Avenue Bank, headquartered in New York, New York, and the FDIC was named receiver. As receiver, the FDIC entered into a purchase and assumption agreement with Valley National Bank, headquartered in Wayne, New Jersey, to assume all of the deposits of The Park Avenue Bank.
Kemper has been on the brink of insolvency for years. It may have finally reached the end of its runway. Last week, Kemper disclosed its most recent financials, which show that very little cash is left in its two major member companies, raising the specter that it may finally be placed into a liquidation proceeding. Policyholders should be aware of the ramifications of a Kemper liquidation and take steps, if possible, to mitigate the impact a Kemper liquidation could have on their businesses.
In a decision that reaffirms its previous rulings on the jurisdictional limits of bankruptcy courts, the US Court of Appeals for the Third Circuit recently held in W.R. Grace & Co. v. Chakarian (In re W.R. Grace & Co.)1 that bankruptcy courts lack subject matter jurisdiction over third-party actions against non-debtors if such actions could affect a debtor’s bankruptcy estate only following the filing of another lawsuit.
The South Florida Bankruptcy Court in the Tousa case ordered various creditors that had benefitted from a fraudulent conveyance to disgorge $421,000,000 to the jointly-administered Tousa bankruptcy estates. The court also ordered the avoidance of liens on the assets of various Tousa subsidiary entities who were also debtors in the bankruptcy proceedings. This case may raise increased focus upon the legal theory of fraudulent conveyance, which was the rationale used by the bankruptcy court to order the money returned.
On March 1st, the bankruptcy court overseeing the bankruptcy proceedings and SIPA liquidation of Bernard L. Madoff Investment Securities upheld the SIPC trustee's method for determining the net equity held by the victims of Madoff's fraud. The SIPC trustee defines net equity as the amount of cash deposited by the customer into his BLMIS customer account less any amounts withdrawn.