On July 25, 2011, JPMorgan Bank filed a third-party complaint against the FDIC in the Southern District of Ohio, claiming the FDIC indemnified JPMorgan when it agreed to buy assets from Washington Mutual, which went bankrupt in 2008.  JPMorgan alleges that it only accepted certain narrow WaMu liabilities in its agreement with the FDIC, specifically excluding liabilities relating to WaMu's pre-closing activities.  Western and Southern Life Insurance Company has since sued JPMorgan for fraudulent misrepresentation in connection with the sale of $650 million in mortgage-backed securi

On July 6, 2011, the Board of Directors of the Federal Deposit Insurance Corporation (“FDIC”) approved a final rule (the “Final Rule”) addressing certain provisions of the Orderly Liquidation Authority (“OLA”) contained in Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”).1

On July 6, the FDIC adopted a final rule addressing the rights and powers of the FDIC as a receiver of a nonviable systemic financial company under the orderly liquidation provisions of Title II of the Dodd-Frank Act.  The rule addresses: (i) recoupment of compensation from senior executives and directors as well as the receiver's power to avoid fraudulent and preferential transfers; (ii) the priority of claims; and (iii) the receivership administrative claims process as well as secured claims procedures.  The lin

The International Swaps and Derivatives Association, Inc. (“ISDA”) is preparing forms of amendment to its boilerplate master agreements in connection with market practice relating to the suspension of payments by a non-defaulting party. ISDA is also considering a protocol to implement the amendments into existing agreements on a multilateral basis.  

On April 18, the FDIC released a report examining how it could have structured an orderly resolution of Lehman Brothers Holdings Inc. using the orderly liquidation authority under Title II of theDodd-Frank Act. FDIC Release.

On April 21, the Fed issued a request for public information and comment on two bankruptcy-related studies required under the Dodd-Frank Act. One study will focus on the resolution of financial companies in Chapter 7 or Chapter 11 bankruptcy, and the other will focus on international coordination of the resolution of systemically important financial companies under the Bankruptcy Code and applicable foreign law. Comments must be submitted within 30 days after publication in the Federal Register.

In a recent decision, the United States Bankruptcy Court for the Southern District of New York ruled that a certificateholder of two CMBS securitization trusts (“CMBS Trusts”) had no standing to be heard in a chapter 11 case involving the borrowers under a securitized mortgage loan held by the CMBS Trusts.

On March 16, 2011, plaintiffs in ABN Amro Bank, et al. v. MBIA Inc., et al. filed their opening brief in the New York Court of Appeals. Plaintiffs are appealing the 3-to-2 decision of an intermediate appellate court dismissing their suit challenging the "fraudulent restructuring" of monoline insurer MBIA. The case, brought by a group of banks that are beneficiaries of MBIA's structured finance-related policies, claims that MBIA transferred $5 billion in assets from MBIA Insurance Corporation (a failing subsidiary) to MBIA Illinois (a stronger subsidiary).

On March 15, 2011, the Federal Deposit Insurance Corporation (“FDIC”) issued a notice of proposed rulemaking (“NPR”) to implement certain orderly liquidation authority (“OLA”) provisions of Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”).

The judgment of the Court of Appeal (the “CA”) in BNY Corporate Trustee Services Limited v Eurosail-UK 2007-3BL PLC & Ors [2011] EWCA Civ 227 was handed down on 7 March 2011.