NJOY, Inc., an e-cigarette and vaping company headquartered in Scottsdale, Arizona, has filed for chapter 11 bankruptcy protection in the United States Bankruptcy Court for the District of Delaware (Case No. 16-12076).

Oklahoma ProCure Management, LLC (dba ProCure Proton Therapy Center) has filed a petition for relief under Chapter 11 in the Bankruptcy Court for the District of Delaware (Case No. 18-12622).

M&G Polymers USA, the West Virginia-based American arm of M&G Chemicals (Luxembourg) has filed a petition for relief under Chapter 11 in the Bankruptcy Court for the District of Delaware (Case No. 17-12268).

Noble Environmental Power, LLC, and several of its affiliates filed for Chapter 11 protection in the Bankruptcy Court for the District of Delaware (Lead Case No. 16-12055). Noble, a renewable energy company that owns and operates wind generation assets in New York and Texas, has its principal place of business in Centerbrook, Connecticut. According to the Debtor’s first day affidavit, downward trends in energy prices have made its debt obligations untenable, leading to the commencement of this case.

The United States Bankruptcy Court for the District of Delaware recently issued an opinion that could mean that directors and officers of insolvent entities face liability for damages caused by the failure to timely file for bankruptcy protection.

In a case of first impression, DLA Piper argued before the US Bankruptcy Court for the District of Delaware that a consent provision in a Delaware LLC operating agreement effectively granting a creditor a veto right over a debtor’s decision to file for bankruptcy was void because it was contrary to federal public policy.

In Quadrant Structured Products Co. v. Vertin, 2015 WL 2062115 (Del. Ch. May 4, 2015), the Delaware Court of Chancery (Vice Chancellor J. Travis Laster) announced a bright-line standard governing the threshold inquiry of when a creditor can maintain a derivative suit against directors for breach of fiduciary duty. The court held that a creditor need only establish that the company was balance sheet insolvent at the time the suit was filed and that the creditor’s standing will not be extinguished if the company rides back into solvency during the litigation.

On March 14 2014 the Delaware Chancery Court found RBC Capital Advisors (RBC) liable for aiding and abetting the breach of fiduciary duty of the board of directors of Rural/Metro, stemming from the sale of the company to Warburg Pincus.

While the details of the court’s decision are contained in Vice Chancellor J. Travis Laster’s 91-page opinion, several salient points are important to understand:

Fifth Circuit Rejects Breach of Fiduciary Duty and Fraudulent Transfer Claims

By Michael L. Cook*

“Officers and directors of [an operating corporate debtor] have fiduciary duties to the corporation — not the corporation’s creditors” under Texas law, held the U.S. Court of Appeals for the Fifth Circuit on Oct. 27, 2017. In re ATP Oil & Gas Corp., 2017 U.S. App. LEXIS 21337, *7 (5th Cir. Oct. 27, 2017). In affirming the district court’s dismissal of a Chapter 7 bankruptcy trustee’s complaint, the Fifth Circuit rejected the trustee’s breach of fiduciary claims against officers and directors for permitting “the payment of . . .