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    Implications for Directors of recent changes to the insolvency rules
    2017-05-23

    The Insolvency Rules 2016 came into force on 6 April 2017 and seek to modernise the insolvency process. These changes were, in part, brought about by the changes to insolvency law and practice as a result of the Small Business, Enterprise and Employment Act 2015 ("the Act"). Now is therefore a good time to take stock of the other key changes brought about by the Act that were anticipated to impact on D&O claims.

    Filed under:
    United Kingdom, Insolvency & Restructuring, DAC Beachcroft, Board of directors, Liquidator (law)
    Authors:
    Marcus Campbell , Graham Briggs
    Location:
    United Kingdom
    Firm:
    DAC Beachcroft
    Directors’ Duties in the UK (England and Wales)
    2016-10-31

    A director who breaches the obligations and duties imposed on him by his office may be liable to compensate the company for breach of duty, may incur personal liability for the company’s debts, may also face criminal or civil penalties and may be disqualified from acting as a director. The position of the company director has never been the subject of more scrutiny than it is today.

    Filed under:
    United Kingdom, Employment & Labor, Insolvency & Restructuring, IT & Data Protection, White Collar Crime, Reed Smith LLP, Security (finance), Board of directors, Debt, Insider trading, Insolvency Act 1986 (UK)
    Authors:
    Kathryn Bond , Emily McMahan , Edward Miller
    Location:
    United Kingdom
    Firm:
    Reed Smith LLP
    California appellate court’s decision limits a creditor’s ability to bring a breach of fiduciary duty claim against directors of insolvent corporations
    2010-04-02

    On February 3, 2010, the California Supreme Court denied review of a significant decision by the California Court of Appeal, Sixth Appellate District, that limits a breach of fiduciary duty action brought by creditors against directors of an insolvent corporation under California law. Berg & Berg Enterprises, LLC v. Boyle, et al., 178 Cal. App. 4th 1020 (2009). California has now joined Delaware in holding that directors do not owe creditors a fiduciary duty, even when the corporation is operating in the so-called “zone of insolvency.”

    Filed under:
    USA, California, Insolvency & Restructuring, Litigation, Manatt Phelps & Phillips LLP, Conflict of interest, Bankruptcy, Shareholder, Breach of contract, Fiduciary, Board of directors, Good faith, Business judgement rule, California Supreme Court, California courts of appeal
    Location:
    USA
    Firm:
    Manatt Phelps & Phillips LLP
    House Committee on Financial Services holds hearing on Lehman Bankruptcy examiner’s report
    2010-04-26

    On April 20, the House Committee on Financial Services held a hearing to discuss public policy issues raised by last month’s report of court-appointed bankruptcy examiner for Lehman Brothers Holdings Inc. (Lehman Brothers), Mr. Anton R. Valukas. The Committee heard testimony from the following witnesses:

    Panel One:

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Alston & Bird LLP, Bankruptcy, Audit, Board of directors, Accounting, Defamation, Balance sheet, US Securities and Exchange Commission, Federal Reserve (USA), FSAB, US House Committee on Financial Services, Chair of the Federal Reserve, Lehman Brothers, Ernst & Young, Chief executive officer
    Authors:
    Dianne Trenholm
    Location:
    USA
    Firm:
    Alston & Bird LLP
    FDIC Notice of Proposed Rulemaking for safe harbor protection for securitizations
    2010-05-12

    On May 11, the Board of Directors of the FDIC approved a Notice of Proposed Rulemaking (the “NPR”) proposing a rule which would govern the treatment by the FDIC, as conservator or receiver of a failed insured depository institution (a “Bank”), of financial assets previously transferred by such Bank in a securitization or participation transaction. The proposed rule would create a safe harbor to confirm legal isolation of these financial assets if certain conditions are satisfied.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Securitization & Structured Finance, Orrick, Herrington & Sutcliffe LLP, Collateral (finance), Safe harbor (law), Board of directors, Interest, Accounting, Depository institution, Secured creditor, Federal Deposit Insurance Corporation (USA), FSAB, Credit rating agency, GAAP
    Authors:
    Howard S. Altarescu , Mark M. Racic
    Location:
    USA
    Firm:
    Orrick, Herrington & Sutcliffe LLP
    The failing bank scenario: an explanation and suggested analysis for a bank’s board of directors and management
    2010-05-20

     The failure of an FDIC-insured commercial bank, savings association or industrial loan company (collectively referred to as a “bank”) is traumatic and economically devastating to both stakeholders in the institution, as well as the local economy served by that entity.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Venable LLP, Commercial bank, Regulatory compliance, Board of directors, Accounting, Cease and desist, Economy, Balance sheet, Underwriting, Capital requirement, Diversification (finance), Federal Deposit Insurance Corporation (USA)
    Location:
    USA
    Firm:
    Venable LLP
    Liability considerations for officers and directors of failed FDIC-insured institutions
    2010-05-20

    1. Introduction

    As a result of the failure of over 200 banks and savings institutions in 2009—and the likelihood of 300 or more failures in the foreseeable future—the banking industry may be faced with another tsunami of litigation brought by the FDIC alleging liability against officers and directors for the failure of their respective institutions.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Venable LLP, Waiver, Fiduciary, Board of directors, Subpoena, Asset forfeiture, Federal Deposit Insurance Corporation (USA), Inspector general
    Location:
    USA
    Firm:
    Venable LLP
    Acquiring failure
    2010-06-04

    On April 23, the FDIC published additional Q&As on the Statement of Policy on Qualifications for Failed Bank Acquisitions (“Policy Statement”) issued in September 2009. The Q&As clarify that there is no requirement that investors must have held their ownership for a specific amount of time.

    Filed under:
    USA, Banking, Corporate Finance/M&A, Insolvency & Restructuring, Morrison & Foerster LLP, Share (finance), Shareholder, Board of directors, Consideration, Holding company, Voting, Capital punishment, Right of first refusal, Federal Deposit Insurance Corporation (USA)
    Authors:
    Oliver I. Ireland
    Location:
    USA
    Firm:
    Morrison & Foerster LLP
    Dismantling large banks - a “how to” guide
    2010-06-04

    On May 17, the FDIC issued a proposed rule that would require certain insured depository institutions to submit a contingent resolution plan outlining how they could be separated from their parent structures and wound down in an orderly and timely manner. Institutions with assets greater than $10 billion that are subsidiaries of a holding company with total assets of more than $100 billion would be subject to this proposal.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Morrison & Foerster LLP, Environmental remediation, Board of directors, Holding company, Depository institution, Deposit insurance, Subsidiary, Parent company, Federal Deposit Insurance Corporation (USA)
    Location:
    USA
    Firm:
    Morrison & Foerster LLP
    FDIC approves TAG extension
    2010-06-22

    Today, the Board of the Federal Deposit Insurance Corporation took the following actions:

    Filed under:
    USA, Banking, Insolvency & Restructuring, Alston & Bird LLP, Board of directors, Market liquidity, Depository institution, Federal Deposit Insurance Corporation (USA)
    Authors:
    Melinda C. Calisti
    Location:
    USA
    Firm:
    Alston & Bird LLP

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