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    No derivative standing for creditors of insolvent LLCs
    2010-12-02

    Under Delaware law, do creditors of an insolvent limited liability company have the same standing as creditors of insolvent corporations to pursue derivative claims against directors on behalf of the LLC? Most commentators, and some courts, have assumed that the answer was “yes.” However, the Delaware Court of Chancery in CML V LLC v. Bax, No. 5373-VCL, 2010 WL 4517795 (Del. Ch. Nov. 3, 2010), determined that the plain language of the Delaware Limited Liability Company Act (the LLC Act) denies derivative standing to such creditors.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Baker Botts LLP, Board of directors, Limited liability company, Standing (law), Court of Chancery, Delaware Court of Chancery, Delaware Supreme Court
    Location:
    USA
    Firm:
    Baker Botts LLP
    A proposed plan’s voting stock allocation causes an incurable change-of-control breach and impermissible reinstatement of secured debt
    2010-12-01

    In re Young Broadcasting, Inc., et al., 430 B.R. 99 (Bankr. S.D.N.Y. 2010)

    CASE SNAPSHOT

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Reed Smith LLP, Share (finance), Shareholder, Credit (finance), Debtor, Unsecured debt, Breach of contract, Board of directors, Interest, Debt, Voting, Default (finance), Secured loan, Pro rata, US District Court for the Southern District of New York
    Authors:
    Ann E. Pille
    Location:
    USA
    Firm:
    Reed Smith LLP
    Arbitration by bishops not unconscionable
    2010-12-23

    The Catholic Bishop of Northern Alaska (CBNA) has been directed to arbitrate an insurance dispute. The CBNA filed for chapter 11 bankruptcy relief as a result of sexual abuse lawsuits against it. In the course of its bankruptcy proceeding, it sought a declaratory judgment as against its insurer, Catholic Mutual Relief Society of America, concerning the scope of coverage for the abuse claims.

    Filed under:
    USA, Alaska, Arbitration & ADR, Insolvency & Restructuring, Insurance, Litigation, Jorden Burt LLP, Bankruptcy, Board of directors, Consent, Unconscionability, POTUS
    Authors:
    John Pitblado
    Location:
    USA
    Firm:
    Jorden Burt LLP
    Fairpoint wins approval of Vermont regulators for amended reorganization plan
    2011-01-07

    Regional landline network operator Fairpoint Communications is finally poised to emerge from Chapter 11 bankruptcy as a result of the decision of the Vermont Public Safety Board (VPSB) to approve the company’s amended reorganization plan. Vermont had been the lone holdout among Maine, New Hampshire and 15 other states that had previously endorsed the plan. The reorganization was precipitated largely by the financial burden of FairPoint’s $2.3 billion purchase of New England landlines from Verizon Communications in 2008.

    Filed under:
    USA, Vermont, Insolvency & Restructuring, Telecoms, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Bankruptcy, Board of directors, Broadband, Debt, Verizon Communications, United States bankruptcy court
    Authors:
    Patrick S. Campbell
    Location:
    USA
    Firm:
    Paul, Weiss, Rifkind, Wharton & Garrison LLP
    FDIC issues opinion clarifying treatment of securitizations by financial companies subject to resolution under Title II of the Dodd-Frank Act
    2011-01-03

    Our October 2010 DechertOnPoint “FDIC Begins Action on Its Super-Resolution Rules for Covered Financial Companies” discussed how systemi-cally significant non-bank financial companies (“covered financial compa-nies”) may find themselves in unknown territory if the FDIC is appointed re-ceiver for them.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Dechert LLP, Security (finance), Board of directors, Personal property, General counsel, Good faith, Securities Industry and Financial Markets Association, Federal Deposit Insurance Corporation (USA), Dodd-Frank Wall Street Reform and Consumer Protection Act 2010 (USA), Title 11 of the US Code
    Authors:
    Thomas P. Vartanian , Malcolm S. Dorris , Robert H. Ledig , Ralph R. Mazzeo
    Location:
    USA
    Firm:
    Dechert LLP
    FDIC board approves interim final rule on new orderly liquidation authority
    2011-01-18

    The Board of Directors of the Federal Deposit Insurance Corporation, or FDIC, approved an interim final rule clarifying how the agency will treat certain creditor claims under the new orderly liquidation authority established under the Dodd-Frank Wall Street Reform and Consumer Protection Act.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Stinson LLP, Shareholder, Consumer protection, Collateral (finance), Board of directors, Market liquidity, Debt, Liquidation, Subordinated debt, Pro rata, Federal Deposit Insurance Corporation (USA), US Congress, Dodd-Frank Wall Street Reform and Consumer Protection Act 2010 (USA), Title 11 of the US Code, Federal Deposit Insurance Act 1950 (USA)
    Authors:
    Stephen M. Quinlivan
    Location:
    USA
    Firm:
    Stinson LLP
    Upcoming action with respect to the Orderly Liquidation Authority under the Dodd-Frank Act
    2011-01-14

    The Federal Deposit Insurance Corporation (FDIC) has announced that the agenda for its board meeting next Tuesday, January 18, 2011, will include discussion regarding a “Final Rule Implementing Certain Orderly Liquidation Authority Provisions of the Dodd-Frank Act.”

    Filed under:
    USA, Banking, Insolvency & Restructuring, Mayer Brown, Consumer protection, Collateral (finance), Fraud, Board of directors, Personal property, Federal Reserve Board, Liquidation, Depository institution, Bank holding company, Lehman Brothers cases, Secured loan, Federal Deposit Insurance Corporation (USA), Lehman Brothers, Dodd-Frank Wall Street Reform and Consumer Protection Act 2010 (USA), Federal Deposit Insurance Act 1950 (USA), US Secretary of the Treasury
    Authors:
    William V. Jacobsen, Jr. , J. Bradley Keck , Jeffrey P. Taft
    Location:
    USA
    Firm:
    Mayer Brown
    FDIC board approves interim final rule on new liquidation authority and clarifies treatment of creditor claims
    2011-01-21

    The Board of Directors of the Federal Deposit Insurance Corporation (FDIC) voted on December 18 to approve an interim final rule clarifying how the agency will treat certain creditor claims under the new orderly liquidation authority established under the Dodd-Frank Wall Street Reform and Consumer Protection Act.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Katten Muchin Rosenman LLP, Shareholder, Consumer protection, Unsecured debt, Collateral (finance), Board of directors, Debt, Liquidation, Subsidiary, Pro rata, Federal Deposit Insurance Corporation (USA), Dodd-Frank Wall Street Reform and Consumer Protection Act 2010 (USA), Title 11 of the US Code
    Location:
    USA
    Firm:
    Katten Muchin Rosenman LLP
    Commercial relationship did not create a § 523(a)(4) fiduciary
    2011-02-16

    FOLLETT HIGHER EDUCATION GROUP v. BERMAN (January 21, 2011)

    Filed under:
    USA, Illinois, Insolvency & Restructuring, Litigation, Kelley Drye & Warren LLP, Bankruptcy, Shareholder, Debtor, Fiduciary, Advertising, Board of directors, Debt, Brokerage firm, Bankruptcy discharge, United States bankruptcy court, Seventh Circuit
    Location:
    USA
    Firm:
    Kelley Drye & Warren 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, Barclays, Federal Reserve Bank, Lehman Brothers, Federal Reserve Bank of New York, Title 11 of the US Code, United States bankruptcy court
    Authors:
    Leon R. Barson , John Henry Schanne, II
    Location:
    USA
    Firm:
    Troutman Pepper

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