Earlier this month Alfred T Giuliano, the Chapter 7 Trustee for National Wholesale Liquidators, began filing various complaints seeking the avoidance and recovery of alleged preferential transfers. On November 19, 2008, I wrote on this blog about the commencement of the National Wholesale Liquidators ("NWL") bankruptcy (read my prior post concerning NWL here). As indicated in the prior post, NWL filed for bankruptcy with an agreement with its lenders that it would either find a buyer while in bankruptcy, or convert and liquidate under Chapter 7 of the Bankruptcy Code.
The recent bankruptcy filings by infrastructure companies Connector 2000 Association Inc., South Bay Expressway, L.P., California Transportation Ventures, Inc., and the Las Vegas Monorail Company have tested the structures utilized to implement public-private partnerships (P3s) in the United States in several respects. It is still too early to draw definitive conclusions about the impact of these proceedings on P3 structures going forward, but initial rulings in two of the cases are already focusing the minds of project participants on threshold structuring considerations.
Expect the unexpected from your Web site privacy policy. In a handful of cases, including two which were recently decided, companies have been thwarted in various, unexpected ways by the commitments made in their online privacy policies.
Are your intellectual property litigators reading your privacy policy?
Title II of the Act, designated "Orderly Liquidation Authority" – effective July 21, 2010 – establishes what is intended to be an orderly liquidation process for "financial companies" whose collapse or potential collapse are determined to constitute a risk to the financial system as a whole. Such systemically significant institutions would be liquidated under these new procedures, rather than being treated under existing bankruptcy laws. (The intent of Act is that most-failing financial companies will continue to be administered under existing bankruptcy laws.)
A Maryland bankruptcy court has declared that Side A benefits under a D&O policy are not property of the bankrupt estate, with the result that two former executives who have been accused of making illegal payments and diverting funds from their former employer to start a new venture may be able to recoup certain defense costs. In re: TMST, Inc. f/k/a Thornburg Mortgage, Inc., et al., Docket No. 09-17787 (Bankr.D.Md. Aug. 17, 2010).
SCHLEICHER v. WENDT (August 20, 2010)
Conseco was a large financial services company traded on the New York Stock Exchange. It filed for bankruptcy in 2002 and successfully reorganized. This securities-fraud claim was filed against Conseco managers who are alleged to have made false statements prior to the bankruptcy. Then-District Judge Hamilton (S.D. Ind.) certified a class. Defendants appeal.
After receiving a letter from David Vladeck, the Director of the Bureau of Consumer Affairs at the Federal Trade Commission, a bankruptcy judge allowed the destruction of personal information of gay teens who subscribed to the now defunct XY magazine.
In re Visteon Corp., No. 10-1944-cv, 2010 WL 2735715 (3d Cir. July 13, 2010), the Third Circuit held that Visteon Corporation (Visteon) could not terminate unvested retiree health and life insurance benefits during a Chapter 11 bankruptcy without seeking court approval pursuant to Bankruptcy Code § 1114, 11 U.S.C. § 1114. The Third Circuit’s decision departs from the rulings of many other federal courts, and is in tension, if not outright conflict, with the Second Circuit’s decision in LTV Steel Co. v. United Mine Workers (In re Chateaugay Corp.), 945 F.2d 1205 (2d Cir.
I. Introduction
On Tuesday, the FDIC held the first in a series of proposed roundtable discussions on the implementation of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, which is intended to bring transparency to the rulemaking process. Government officials, industry executives, academics and investors were invited to participate in the discussion.