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    The business litigator
    2009-04-21

    After a relatively brief and checkered stint in Delaware courts, it appears that the cause of action against corporate directors for “deepening insolvency” may have lost its place in Delaware corporate jurisprudence.

    Filed under:
    USA, Delaware, Company & Commercial, Insolvency & Restructuring, Litigation, Katten Muchin Rosenman LLP, Shareholder, Breach of contract, Fraud, Fiduciary, Federal Reporter, Debt, Liquidation, Good faith, Due diligence, Business judgement rule, Delaware Supreme Court, Third Circuit
    Authors:
    Daniel P. Shapiro
    Location:
    USA
    Firm:
    Katten Muchin Rosenman LLP
    Bankruptcy court allows collateral agent to credit bid without 100% approval of senior lenders in same facility
    2009-04-28

    In a recent decision, the Bankruptcy Court for the District of Delaware allowed the collateral agent for senior lenders to credit bid for the debtors’ assets even though all of the senior lenders had not authorized the bid. One of the senior lenders had objected to the group’s acquisition of the debtors’ assets by the credit bid. In re GWLS Holdings, Inc., 2009 WL 453110 (Bankr. D. Del. Feb. 23, 2009) (Walsh, J.).

    Filed under:
    USA, Delaware, Banking, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Bankruptcy, Credit (finance), Debtor, Collateral (finance), Waiver, Consent, Line of credit, Secured creditor, Secured loan, Title 11 of the US Code, Uniform Commercial Code (USA), Delaware Supreme Court, United States bankruptcy court, US District Court for District of Delaware
    Authors:
    Adam C. Harris , David M. Hillman , Lawrence V. Gelber , Michael L. Cook
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Delaware State Court: D&O insurer waived its right to hearing on reasonableness of insured’s reimbursement requests
    2009-05-05

    The Superior Court of Delaware recently held that a D&O insurer failed to timely respond to it insured’s reimbursement requests and must therefore provide reimbursement for prior legal defense costs and advance future defense costs within sixty days of receipt of invoices. HLTH Corp. v. Axis Reinsurance Co., et al., No. 07C-09-102, 2009 WL 756306 ( Del. Sup. Ct. Mar. 23, 2009).

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Locke Lord LLP, Costs in English law, Waiver, Reinsurance, Attorney's fee, Delaware Supreme Court
    Location:
    USA
    Firm:
    Locke Lord LLP
    Judicial dissolution or restructuring the joint venture: which would you prefer?
    2009-05-15

    On January 13, 2009, in Fisk Ventures, LLC v. Segal, the Court of Chancery of Delaware considered the petition by an investor to have Genetrix, LLC dissolved because it was no longer “reasonably practicable” to continue to operate the company when the company had no operating revenue, no prospects of equity or debt infusion, a deadlocked board of directors and an operating agreement that gave no means of navigating around the deadlock. The court found in favor of the investor and concluded that judicial dissolution was the best and only option for the members in the company.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Seyfarth Shaw LLP, Board of directors, Limited liability company, Debt, Joint venture, Economy, Refinancing, Dissolution (law), Constitutional amendment, Court of Chancery
    Location:
    USA
    Firm:
    Seyfarth Shaw LLP
    Visteon files bankruptcy
    2009-05-28

    Visteon and Affiliates File for Bankruptcy Protection

    Visteon Corporation and related affiliates (“Visteon”) filed voluntary bankruptcy petitions on May 28, 2009, in the United States Bankruptcy Court for the District of Delaware (“Bankruptcy Court”). Visteon intends to continue to operate its businesses while in bankruptcy. Although Visteon UK, Ltd., has already filed bankruptcy in Great Britain, it appears that Visteon’s other non-U.S. subsidiaries will not be filing separate proceedings and will not be part of Visteon’s U.S. bankruptcy proceeding.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Masuda Funai Eifert & Mitchell Ltd, Bankruptcy, Credit (finance), Debtor, Debt, Bill of lading, Title 11 of the US Code, United States bankruptcy court, US District Court for District of Delaware
    Authors:
    Gary D. Santella , Reinhold F. Krammer
    Location:
    USA
    Firm:
    Masuda Funai Eifert & Mitchell Ltd
    Right to credit bid upheld under intercreditor agreement
    2009-07-08

    Under section 363(f) of the bankruptcy code, a trustee may sell assets of the bankruptcy estate free and clear of liens and other interests. Generally, absent consent of the lienholder, a trustee may only sell assets free and clear of liens under one of the following conditions:

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Reed Smith LLP, Bankruptcy, Credit (finance), Debtor, Collateral (finance), Waiver, Option (finance), Debt, Consent, Good faith, Title 11 of the US Code, Trustee, United States bankruptcy court, US District Court for District of Delaware
    Authors:
    Aaron B. Chapin
    Location:
    USA
    Firm:
    Reed Smith LLP
    The triangular setoff after SemCrude
    2009-08-26

    An opinion issued earlier this year by the Delaware Bankruptcy Court in In re SemCrude, L.P., et al. (Bankr. Del., No. 08-11525; January 9, 2009) may end much of the practice of so-called “triangular setoffs” by creditors in bankruptcy cases. The Court in SemCrude found that creditors violate section 553 of the Bankruptcy Code by setting off amounts among multiple debtors, even when exercising contractual assignment rights. This ruling is likely to have far-reaching impact given the dearth of case law on this fairly common contractual provision.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Bankruptcy, Debtor, Unsecured debt, Security (finance), Safe harbor (law), Federal Reporter, Debt, Liability (financial accounting), DuPont, Chevron Corporation, US Code, Title 11 of the US Code, Second Circuit, Delaware Supreme Court, United States bankruptcy court
    Authors:
    Andrew M. Simon
    Location:
    USA
    Firm:
    Squire Patton Boggs
    Federal district court affirms bankruptcy court holding that inadequate consideration exclusion bars coverage
    2009-08-25

    A federal district court in Delaware, applying New York law, has affirmed a bankruptcy court's dismissal of an adversary proceeding brought by a bankrupt home mortgage company against its directors and officers liability insurers, holding that coverage for a pre-petition lawsuit against the mortgage company was barred by application of an “inadequate consideration” exclusion.Delta Fin. Corp. v. Westchester Surplus Lines Ins. Co., 2009 WL 2392882 (D. Del. Aug. 4, 2009).

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Insurance, Litigation, Wiley Rein LLP, Bankruptcy, Costs in English law, Unsecured debt, Consideration, Mortgage loan, Fair market value, Holding company, Cashflow, United States bankruptcy court
    Location:
    USA
    Firm:
    Wiley Rein LLP
    R&R Capital, LLC v. Merritt
    2009-09-03

    C.A. No. 3989-CC (Del. Ch. Sept. 3, 2009)

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, White Collar Crime, Potter Anderson & Corroon LLP, Fraud, Res judicata and issue estoppel, Liquidation, Estoppel, Embezzlement, Gross negligence, Collateral estoppel, Court of Chancery, Delaware Court of Chancery, Delaware Supreme Court
    Location:
    USA
    Firm:
    Potter Anderson & Corroon LLP
    American Home court denies bank’s deficiency claim by accepting discounted cash flow valuation of mortgage loan portfolio subject to repurchase agreement
    2009-09-17

    A Delaware bankruptcy court recently delivered the first decision applying section 562 of the Bankruptcy Code to a claim based on the termination of a repurchase agreement. In re American Home Mortgage Corp., Bankr. Case no. 07-1104, Dkt. no. 8021 (Bankr. D. Del. Sept. 8, 2009). The court’s ruling creates additional uncertainty in the calculation of bankruptcy claims, not only with respect to repurchase agreements but also with respect to other safe harbored financial contracts.

    Filed under:
    USA, Delaware, Banking, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Mortgage loan, Debtor in possession, Market value, Valuation (finance), Discounted cash flow, United States bankruptcy court
    Authors:
    Mark C. Ellenberg , Peter M. Dodson
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP

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