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    Dodd-Frank Wall Street Reform and Consumer Protection Act: FDIC proposes additional rules implementing aspects of orderly liquidation authority
    2011-03-29

    In its continued effort to implement its authority to resolve “covered financial companies” under Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”), on March 15, 2011, the Board of Directors of the Federal Depository Insurance Corporation (the “FDIC”) approved the Notice of Proposed Rulemaking Implementing Certain Orderly Liquidation Authority Provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Proposed Rules”).

    Filed under:
    USA, Banking, Insolvency & Restructuring, White & Case LLP, Consumer protection, Unsecured debt, Fraud, Board of directors, Liquidation, Bank holding company, Systemic risk, Dodd-Frank Wall Street Reform and Consumer Protection Act 2010 (USA), GAAP, International Financial Reporting Standards, Federal Deposit Insurance Corporation (USA), US Secretary of the Treasury
    Location:
    USA
    Firm:
    White & Case LLP
    Deepening insolvency claims in disguise: Delaware Bankruptcy Court revisits Trenwick decision
    2008-05-13

    Directors and officers of troubled companies are already keenly cognizant of their potential liability for any breaches of fiduciary duty, negligence and fraud.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White & Case LLP, Shareholder, Debtor, Unsecured debt, Breach of contract, Fraud, Fiduciary, Board of directors, Negligence, Good faith, Corporate bond, Conspiracy (civil), Delaware General Corporation Law, Delaware Supreme Court, United States bankruptcy court, Trustee
    Location:
    USA
    Firm:
    White & Case LLP
    Delaware Supreme Court rules against creditors’ ability to bring direct breach of fiduciary duty suits against directors of corporations which are insolvent or are in the zone of insolvency
    2007-07-27

    On May 18, 2007, in North American Catholic Educational Programming Foundation, Inc. v. Gheewalla (“Gheewalla”),1 the Delaware Supreme Court affirmed the Delaware Court of Chancery’s decision2 in which the Court of Chancery precluded creditors from filing direct suits for breach of fiduciary duty against directors of corporations that are either in the zone of insolvency or are actually insolvent. With its decision, the Delaware Supreme Court has limited creditors’ ability to sue directors for breach of fiduciary duty.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White & Case LLP, Bankruptcy, Shareholder, Breach of contract, Fiduciary, Board of directors, Accounting, Personal jurisdiction, Standing (law), Goldman Sachs, Court of Chancery, Delaware Court of Chancery, Delaware Supreme Court, Court of equity
    Location:
    USA
    Firm:
    White & Case LLP
    Directors' duties: French companies Financial difficulties potentially resulting from the COVID-19 situation
    2020-04-16

    This note sets out the duties of the following directors of French companies with a particular focus on the duties owed by such directors of companies in financial difficulties:

    Filed under:
    France, Company & Commercial, Insolvency & Restructuring, Litigation, Freshfields Bruckhaus Deringer LLP, Board of directors, Coronavirus
    Location:
    France
    Firm:
    Freshfields Bruckhaus Deringer LLP
    Law on restricting of financial institutions passed
    2010-11-18

    The German parliament (Deutscher Bundestag) has recently passed a law on the restructuring and dissolution of distressed financial institutions, establishing a sector-wide restructuring fund and extending the statute of limitations for the liability board members (Restructuring Act).

    Filed under:
    Germany, Banking, Insolvency & Restructuring, Freshfields Bruckhaus Deringer LLP, Statute of limitations, Board of directors, Distressed securities, Bundestag
    Location:
    Germany
    Firm:
    Freshfields Bruckhaus Deringer LLP
    Recent circuit court equitable subordination decisions emphasize requirement that misconduct result in actual harm to other parties
    2009-01-30

    In recent opinions, the United States Courts of Appeals for the Fifth and Seventh Circuits have revisited the doctrine of equitable subordination and have underscored the requirement that, before a court can equitably subordinate a creditor’s claim, the court must find that other creditors have been harmed by the actions of the creditor. Importantly, both decisions stress that equitable subordination is meant to be remedial and not punitive, and may not be imposed merely because a creditor has engaged in misconduct.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Punitive damages, Bankruptcy, Surety, Debtor, Breach of contract, Fiduciary, Board of directors, Debt, Cashflow, Unsecured creditor, United States bankruptcy court, Fifth Circuit, Seventh Circuit, Trustee
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Breach of fiduciary duty claims dismissed, but conduct might still support equitable subordination or recharacterization
    2008-06-30

    In Mukamal v. Bakes,1 the trustee of two trusts created under a chapter 11 plan of reorganization filed a complaint (the “Complaint”) against the former directors and officers of the debtors, the dominant shareholders of the debtors and the debtors’ accounting firm, alleging, among other things, various breaches of fiduciary duties.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Shareholder, Debtor, Unsecured debt, Collateral (finance), Arbitration clause, Waiver, Fiduciary, Audit, Board of directors, Trustee
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Bankruptcy court validates sale process in Lehman’s multi-billion-dollar ‘windfall’ suit against Barclays Capital - decision highlights extraordinary burden required to overturn a section 363 bankruptcy sale
    2011-03-07

    In a long-awaited decision released on February 22, 2011, Judge James M. Peck of the United States Bankruptcy Court for the Southern District of New York ruled in favor of Barclays Capital in Lehman Brothers Holding Inc.’s multi-billion-dollar lawsuit arising out of the sale of Lehman’s investment banking and brokerage assets, which occurred in September of 2008.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Troutman Pepper, Bankruptcy, Security (finance), Board of directors, Investment banking, Systemic risk, Brokerage firm, Title 11 of the US Code, Barclays, Lehman Brothers, United States bankruptcy court
    Authors:
    Leon R. Barson , John Henry Schanne, II
    Location:
    USA
    Firm:
    Troutman Pepper
    Delaware Court of Chancery says creditors of insolvent LLCs may not sue management
    2010-11-18

    Creditors of insolvent Delaware corporations have recourse against corporate directors and officers whose disloyal or self-dealing conduct reduces the corporation’s assets available for distribution. Delaware courts have held that directors and officers of insolvent corporations owe fiduciary duties to creditors as the principal stakeholders in the remaining corporate assets. Where those duties are breached, creditors have standing to bring actions derivatively on behalf of the corporation for damages to the corporation. However, in a recent decision by Vice Chancellor J.

    Filed under:
    USA, Delaware, Company & Commercial, Insolvency & Restructuring, Litigation, Troutman Pepper, Shareholder, Breach of contract, Fiduciary, Board of directors, Limited liability company, Standing (law), Stakeholder (corporate), Default (finance), Delaware General Corporation Law, Delaware Court of Chancery, Court of equity
    Location:
    USA
    Firm:
    Troutman Pepper
    Debt Relief Orders – the latest tool in the debt relief toolbox
    2009-04-07

    For debtors with limited liabilities, little surplus income and minimal gross assets, the new Debt Relief Order (DRO) is a further tool to consider in managing their debts. DROs, which came into force on 6 April 2009, are aimed at those who find they are unable to pay off their debts within a reasonable time but for whom other forms of debt relief, such as bankruptcy or Individual Voluntary Arrangements, are unavailable, or perhaps unaffordable.

    What are the criteria for a DRO?

    A DRO can be applied for where the debtor:

    Filed under:
    United Kingdom, Insolvency & Restructuring, Gowling WLG, Credit (finance), Debtor, Unsecured debt, Dividends, Board of directors, Debt, Debt relief, Liability (financial accounting), Credit rating
    Authors:
    Greg Standing
    Location:
    United Kingdom
    Firm:
    Gowling WLG

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