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    Enron redux: round two goes to claims purchasers/traders
    2007-10-01

    In previous editions of the Business Restructuring Review, we reported on a pair of highly controversial rulings handed down in late 2005 and early 2006 by the New York bankruptcy court overseeing the chapter 11 cases of embattled energy broker Enron Corporation and its affiliates. In the first, Bankruptcy Judge Arthur J. Gonzalez held that a claim is subject to equitable subordination under section 510(c) of the Bankruptcy Code even if it is assigned to a third-party transferee who was not involved in any misconduct committed by the original holder of the debt.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Shareholder, Security (finance), Fraud, Fiduciary, Common law, Asset forfeiture, Citibank, Enron, Title 11 of the US Code, United States bankruptcy court
    Location:
    USA
    Firm:
    Jones Day
    Second Circuit rules bankruptcy court cannot enjoin all claims against insurer
    2008-02-26

    In an important recent decision of the United States Court of Appeals for the Second Circuit, testing the outer reaches of a bankruptcy court’s jurisdiction, In re Johns Manville Corp., 06-2099 (2d Cir. Feb. 15, 2008), the court considered whether claims that are not derivative of a debtor’s liability, but rather seek to recover directly from an insurer for its own alleged misconduct, can be enjoined by the “channeling” mechanism developed by the bankruptcy court.

    Filed under:
    USA, Insolvency & Restructuring, Insurance, Litigation, Locke Lord LLP, Bankruptcy, Debtor, Injunction, Liability insurance, Common law, Direct action, Second Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Locke Lord LLP
    Asbestos bankruptcy channeling injunction cannot reach direct actions based on independent duty of insurer, Second Circuit rules
    2008-02-22

    The United States Court of Appeals for the Second Circuit has ruled that the Johns-Manville bankruptcy court did not have jurisdiction to enjoin direct action claims asserted against Travelers entities that are predicted on an independent duty owed by Travelers, that do not claim against the res of the Manville estate, and that seek damages unrelated to and in excess of Manville's insurance proceeds. Johns-Manville Corp. v. Chubb Indemnity Ins. Co., --- F.3d ---, 2008 WL 399010 (2d Cir. Feb. 15, 2008).

    Filed under:
    USA, Insolvency & Restructuring, Insurance, Litigation, Wiley Rein LLP, Bankruptcy, Injunction, Federal Reporter, Mediation, Bad faith, Common law, Direct action, Westlaw, Second Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Wiley Rein LLP
    Enforcement of creditors' rights under the UCC: is shareholder consent required?
    2008-06-19

    Boards of directors of troubled companies must balance their fiduciary obligations to shareholders and creditors. Insolvent companies owe duties to creditors and not solely to shareholders and, under evolving case law, companies acting in the "zone of insolvency" owe a duty to creditors as well as to shareholders.

    Filed under:
    USA, Insolvency & Restructuring, Richards Kibbe & Orbe LLP, Shareholder, Debtor, Collateral (finance), Fiduciary, Board of directors, Debt, Consent, Mortgage loan, Foreclosure, Liability (financial accounting), Common law, Refinancing, Secured creditor, Certificate of incorporation, Uniform Commercial Code (USA)
    Location:
    USA
    Firm:
    Richards Kibbe & Orbe LLP
    Sixth Circuit agrees that a vendor's administrative-expense priority on its reclamation claim survives after sale of goods subject to reclamation
    2008-07-18

    On July 17, 2008, in Phar-Mor, Inc. v. McKesson Corp. (Nos 05-4525/4526), the Sixth Circuit affirmed the Northern District of Ohio's ruling that a vendor's administrative expense priority on its reclamation claim survives, even after the goods that are subject to reclamation are sold and the proceeds are used to satisfy a secured creditor's superior claim. Full text of the opinion.

    Facts

    Filed under:
    USA, Ohio, Insolvency & Restructuring, Litigation, Bricker & Eckler LLP, Bankruptcy, Debtor, Liquidation, Common law, Secured creditor, US Code, Uniform Commercial Code (USA), United States bankruptcy court, Sixth Circuit
    Location:
    USA
    Firm:
    Bricker & Eckler LLP
    Drafting error deprives creditors of benefit of bankruptcy estate assets
    2008-09-03

    The Fifth Circuit recently issued an opinion addressing an important issue with respect to the preservation of a debtor's causes of action in a Chapter 11 plan of reorganization. The Fifth Circuit held that a reorganized debtor lacked standing to pursue certain common-law claims that were based on the pre-confirmation management of the bankruptcy estate's assets.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White & Case, Bankruptcy, Debtor, Unsecured debt, Breach of contract, Fraud, Fiduciary, Limited liability company, Res judicata and issue estoppel, Standing (law), Negligence, Liquidation, Common law, Collateral estoppel, Title 11 of the US Code, United States bankruptcy court, Fifth Circuit
    Location:
    USA
    Firm:
    White & Case
    The Second Circuit confirms that bankruptcy principles trump common law equity
    2009-01-15

    When a creditor seeks equitable relief in a bankruptcy court, must the court always follow common law principles of equity? Not according to several courts, including the Second Circuit. Concluding that the granting of equitable remedies may circumvent the Bankruptcy Code's equitable distribution system, courts have limited the application of equitable remedies in the bankruptcy context.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White & Case, Bankruptcy, Surety, Debtor, Fraud, Interest, Division of property, Reinsurance, Unjust enrichment, Common law, Constructive trust, Title 11 of the US Code, Trustee, Supreme Court of the United States, Second Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    White & Case
    Asbestos litigation leads to another corporate bankruptcy
    2009-02-03

    With approximately 7,000 asbestos-related lawsuits pending against it, Hercules Chemical has filed for bankruptcy protection under Chapter 11. The company is a manufacturer of chemicals for the plumbing industry. In ``Dispelling the Myths of Asbestos Litigation: Solutions for Common Law Courts,`` Rick Faulk discussed problems in the asbestos-driven toxic tort litigation system – a system that has led many companies to Chapter 11.

    Filed under:
    USA, Environment & Climate Change, Insolvency & Restructuring, Foley & Lardner LLP, Bankruptcy, Common law
    Location:
    USA
    Firm:
    Foley & Lardner LLP
    Is triangular set-off enforceable under U.S. laws?
    2009-04-27

    The U.S. Bankruptcy Court for the District of Delaware recently issued a decision addressing triangular set-off provisions, which potentially has very far-reaching implications for the enforceability of contractual set-off rights under U.S. law.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Reed Smith LLP, Bankruptcy, Debtor, Safe harbor (law), Swap (finance), Debt, Common law, Chevron Corporation, US Code, Title 11 of the US Code, Delaware Supreme Court, United States bankruptcy court, US District Court for District of Delaware
    Location:
    USA
    Firm:
    Reed Smith LLP
    Tax practitioner privilege, what does Valero tell us?
    2009-08-19

    On June 17, 2009, the Seventh Circuit examined the tax practitioner privilege in Valero Energy Corporation v. U.S., 103 AFTR 2d 2009-2683. Valero, a large oil refiner, expanded its operations in 2001 by acquiring Ultra Diamond Shamrock Corporation (“UDS”). Prior to the acquisition, Ernst & Young developed a restructuring and refinancing plan for UDS’s Canadian subsidiaries. Valero asked its tax advisors, Arthur Anderson, to review the plan and provide additional tax advice.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Tax, Kilpatrick Townsend & Stockton LLP, Audit, Marketing, Attorney-client privilege, Legal burden of proof, Common law, Refinancing, Internal Revenue Service (USA), US Federal Government, US Congress, Internal Revenue Code (USA), Seventh Circuit
    Authors:
    Scott Dayan , Donald Reiser
    Location:
    USA
    Firm:
    Kilpatrick Townsend & Stockton LLP

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