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    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
    American home court expands scope of repo safe harbor
    2008-06-30

    On May 23, 2008, in American Home Mortgage Investment Corp. v. Lehman Bros. Inc.(In re American Home Mortgage Corp.),1 the United States Bankruptcy Court for the District of Delaware ruled that BBB-rated mortgagebacked notes are eligible for the Bankruptcy Code’s repurchase agreement safe harbor as “interests in mortgage loans”.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Debtor, Collateral (finance), Security (finance), Breach of contract, Safe harbor (law), Interest, Market liquidity, Mortgage loan, Foreclosure, Broker-dealer, Credit rating, Mortgage-backed security, Commercial paper, Lehman Brothers, Title 11 of the US Code, Uniform Commercial Code (USA), United States bankruptcy court
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Bankruptcy court rules that federal mogul insurance policies may be assigned to asbestos liability trust
    2008-07-21

    In a recent decision of the United States Bankruptcy Court for the District of Delaware, In re Federal Mogul Global, Inc., No. 01-10578 (JKF) (Bankr. D. Del., Mar. 19, 2008) (click here to read the decision), the court ruled that the assignment of rights in certain insurance policies to an asbestos trust was valid and enforceable under the Bankruptcy Code, and anti-assignment provisions in the policies and applicable state law were preempted.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Insurance, Litigation, Locke Lord LLP, Federal preemption, Bankruptcy, Debtor, Liability (financial accounting), Underwriting, Delaware Supreme Court, United States bankruptcy court, Third Circuit, US District Court for District of Delaware
    Location:
    USA
    Firm:
    Locke Lord LLP
    Good-faith Chapter 11 filing determination defeats fiduciary duty breach claim
    2008-08-01

    For the third time in as many years, the Delaware Chancery Court has handed down an important ruling interpreting the interaction between federal bankruptcy law and Delaware corporate law. The thorny question this time was whether a bankruptcy court’s determination that the directors of a corporation acted in good faith when they authorized a chapter 11 filing precluded a subsequent claim that the directors breached their fiduciary duties by doing so. The Delaware Chancery Court concluded that it did, ruling in Nelson v.

    Filed under:
    USA, Delaware, Company & Commercial, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Shareholder, Breach of contract, Fiduciary, Debt, Good faith, Balance sheet, Bad faith, Line of credit, Secured creditor, Collateral estoppel, Chief executive officer, Delaware Court of Chancery, United States bankruptcy court
    Location:
    USA
    Firm:
    Jones Day
    Guidance for directors of financially troubled companies from Delaware Bankruptcy Court
    2008-09-03

    The United States Bankruptcy Court for the District of Delaware on May 30, 2008, issued a memorandum opinion in which it refused to dismiss claims of breach of fiduciary duty against directors and officers of a company who approved the sale of the company’s assets on the eve of its filing for bankruptcy protection. In issuing its opinion inIn re Bridgeport Holdings Inc., the court provided some guidelines for directors and officers, particularly during challenging economic times.

    Filed under:
    USA, Delaware, Company & Commercial, Insolvency & Restructuring, Litigation, Faegre Drinker Biddle & Reath LLP, Bankruptcy, Breach of contract, Fiduciary, Market liquidity, Liquidation, Good faith, Duty of care, Business judgement rule, Line of credit, Valuation (finance), Leverage (finance), Memorandum opinion, Chief executive officer, United States bankruptcy court, US District Court for District of Delaware
    Location:
    USA
    Firm:
    Faegre Drinker Biddle & Reath LLP
    R&R Capital, LLC, et al. v. Buck & Doe Run Valley Farms, LLC, et al., C.A. No. 3803-cc (Del. Ch. August 19, 2008)
    2008-08-19

    The petitioner entities, two New York limited liability companies (the “Petitioners”), filed a petition seeking judicial dissolution and winding up of nine Delaware limited liability companies (the “Respondents”) pursuant to Sections 18-802 and 18-803 of the Delaware Limited Liability Company Act, 6 Del. C. §§ 18-101, et seq. (the “LLC Act”), or, in the alternative, appointment of a receiver for the Respondents pursuant to Section 18-805 of the LLC Act.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Potter Anderson & Corroon LLP
    Location:
    USA
    Firm:
    Potter Anderson & Corroon LLP
    US Bankruptcy Court backs FSDS in Sea Containers case
    2008-09-30

    The United States Bankruptcy Court for the District of Delaware has approved a settlement agreement between three Sea Containers companies, their unsecured creditors and the trustees of the two pension schemes belonging to the UK subsidiary Sea Containers Services Limited.

    Filed under:
    USA, Delaware, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Freshfields Bruckhaus Deringer, Unsecured debt, Subsidiary, The Pensions Regulator (UK), Trustee, United States bankruptcy court, US District Court for District of Delaware
    Location:
    USA
    Firm:
    Freshfields Bruckhaus Deringer
    Ruling confirming primacy of federal bankruptcy law over state law prohibiting assignment of insurance policies good news for Chapter 11 plan asbestos trusts
    2008-10-22
    Filed under:
    USA, Delaware, Insolvency & Restructuring, Insurance, Litigation, Jones Day
    Location:
    USA
    Firm:
    Jones Day
    Contract rejection claims eligible for setoff under Section 553: rejecting the Delta approach
    2008-10-22

    A creditor’s ability in a bankruptcy case to exercise rights that it has under applicable law to set off an obligation it owes to the debtor against amounts owed by the debtor to it, thereby converting its unsecured claim to a secured claim to the extent of the setoff, is an important entitlement.

     

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Conflict of laws, Debtor, Unsecured debt
    Location:
    USA
    Firm:
    Jones Day
    In the matter of Dow Chem. Int’l Inc. of Delaware
    2008-10-14

    C.A. No. 3972-CC (Del. Ch. Oct. 14, 2008) (C. Chandler).

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Potter Anderson & Corroon LLP, Shareholder, Liquidation, Dissolution (law), Dow Chemical Company, Delaware General Corporation Law, Court of Chancery, Delaware Supreme Court
    Location:
    USA
    Firm:
    Potter Anderson & Corroon LLP

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