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Living wills

On September 13th, the FDIC voted to approve a final rule to be issued jointly with the Federal Reserve Board that would implement Section 165(d) of the Dodd-Frank Act. That provision requires bank holding companies with assets of $50 billion or more and companies designated as systemic by the Financial Stability Oversight Council to report periodically to the FDIC and the Federal Reserve the company's plan for its rapid and orderly resolution in the event of material financial distress or failure. The Federal Reserve will consider whether to adopt the rule shortly.

USA, Banking, Insolvency & Restructuring, Winston & Strawn LLP, Board of directors, Federal Reserve Board, Depository institution, Bank holding company, Federal Deposit Insurance Corporation (USA), Federal Reserve (USA), Financial Stability Oversight Council, Dodd-Frank Wall Street Reform and Consumer Protection Act 2010 (USA)
Newpage - a good old fashioned free-fall Chapter 11 case

Last week’s Chapter 11 filing by NewPage Corporation, a company with assets and liabilities in the billions of dollars, stands as a relative rarity in the current restructuring environment.

USA, Insolvency & Restructuring, Litigation, Kelley Drye & Warren LLP, Bankruptcy, Trade union, Hedge funds, Debt, Liability (financial accounting), Collective bargaining agreements, Balance sheet, Debtor in possession, Distressed securities, Bénéfice, US Environmental Protection Agency, Pension Benefit Guaranty Corporation
No soup for you: derivative actions concerning Delaware limited liability companies

The opinion issued by the Delaware Supreme Court (the “Court”) in the matter of CML V, LLC v. Bax, No. 735, 2010 (Del. Supr. Sept.

USA, Delaware, Company & Commercial, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Winston & Strawn LLP, Legal personality, Fiduciary, Statute of limitations, Board of directors, Limited liability company, Standing (law), Secured creditor, Derivative suit, Court of Chancery, Delaware Court of Chancery, Delaware Supreme Court
FDIC launches Investor Match Program

On September 7th, the FDIC announced the launch of a new program to encourage small investors and asset managers to partner with larger investors to participate in the FDIC's structured transaction sales for loans and other assets from failed banks. The Investor Match Program will help to facilitate partnerships in order to bring together sources of capital and expertise. Participants in the program will use a customized database to identify potential collaborations, which will be identified at the sole discretion of the participating firms.

USA, Banking, Insolvency & Restructuring, Winston & Strawn LLP, Asset management, Federal Deposit Insurance Corporation (USA)
Federal Reserve Board proposes phase-in period for SLHC reporting

On August 22nd, the Federal Reserve Board proposed a two-year phase-in period for most savings and loan holding companies ("SLHCs") to file Federal Reserve regulatory reports with the Board and an exemption for some SLHCs from initially filing Federal Reserve regulatory reports. Under the Dodd-Frank Act, supervisory and rulemaking authority for SLHCs and their non-depository subsidiaries was transferred from the OTS to the Board. The Board previously sought comment on whether to require SLHCs to submit the same reports as bank holding companies.

USA, Banking, Capital Markets, Insolvency & Restructuring, Winston & Strawn LLP, Tax exemption, Federal Reserve Board, Holding company, Bank holding company, Subsidiary, Federal Reserve (USA), Dodd-Frank Wall Street Reform and Consumer Protection Act 2010 (USA)
Litigation pitfalls

On August 24th, the Third Circuit issued an opinion warning lawyers of the hazards posed by over-reliance upon automated, computerized communications between counsel and client. In doing so, it reinstated an order sanctioning a lawyer and her law firm for making false filings with the bankruptcy court. In re: Niles C. Taylor.  

USA, Insolvency & Restructuring, Litigation, Winston & Strawn LLP, United States bankruptcy court, Third Circuit
Mets' owners swing for the fences against Madoff trustee

Fred Wilpon, Saul Katz, and their families and affiliated enterprises (the “Wilpon/Katz Group”) last week formally requested the dismissal of the adversary proceeding commenced by Irving Picard, the trustee of Bernard L. Madoff Investment Securities LLC (“BLMIS”). In a two hour hearing before U.S.

USA, Insolvency & Restructuring, Litigation, White Collar Crime, Kelley Drye & Warren LLP, Bankruptcy, Debtor, Fraud, Discovery, Debt, Mediation, Good faith, Title 11 of the US Code, Trustee, Second Circuit
Seventh Circuit dodges intra- and inter-circuit conflict regarding res judicata and bankruptcy

MATRIX IV, INC. v. AMERICAN NATIONAL BANK AND TRUST CO. OF CHICAGO (July 28, 2011)

USA, Insolvency & Restructuring, Litigation, Kelley Drye & Warren LLP, Bankruptcy, Breach of contract, Fraud, Res judicata and issue estoppel, Estoppel, Summary offence, Common law, Collateral estoppel, Collusion, Racketeer Influenced and Corrupt Organizations Act 1970 (RICO) (USA), United States bankruptcy court, Seventh Circuit
Creditor fraud in bankruptcy proceeding is not a "fraud on the court" for Rule 60 purposes

IN RE: GOLF 255, INC. (July 22, 2011)

USA, Insolvency & Restructuring, Litigation, Kelley Drye & Warren LLP, Bribery, Bankruptcy, Shareholder, Fraud, Discovery, Res judicata and issue estoppel, Mediation, Indian National Congress, Trustee, United States bankruptcy court, Seventh Circuit
Remand order is not appealable when lower court unmistakenly dismissed for lack of jurisdiction, even though erroneously

TOWNSQUARE MEDIA v. BRILL (July 21, 2011)

USA, Insolvency & Restructuring, Litigation, Media & Entertainment, Kelley Drye & Warren LLP, Bankruptcy, Summary offence, Remand (court procedure), Non-disclosure agreement, Subject-matter jurisdiction, Supplemental jurisdiction, United States bankruptcy court, Seventh Circuit