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    Protecting privileged financial documentation during bankruptcy litigation (cont’d)
    2013-07-11

    In the last edition of the CRABS E-Newsletter we discussed the steps that were taken by Wells Fargo Bank, N.A. to protect records in its possession during the course of bankruptcy litigation with a Chapter 7 Trustee by using the attorney client privilege in McCarthy v. Wells Fargo Bank, N.A. (In re El-Atari), 2013 WL 593705 (Bankr. Va. 2013).  

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cantey Hanger LLP, Federal Reporter, Discovery
    Authors:
    Perry Cockerell
    Location:
    USA
    Firm:
    Cantey Hanger LLP
    A warning to financial institutions: failure to issue a litigation hold may have serious consequences
    2013-05-03

    As electronic discovery has become more prevalent and voluminous, national standards for the preservation of evidence have evolved dramatically in the past decade. Through a proliferation of electronic discovery orders involving discovery compliance, courts have addressed when the duty to preserve evidence arises, signifying a party’s duty to issue a “litigation hold.” Courts have not answered, however, whether a party can withhold documents generated before issuing a litigation hold on the basis of work product protection.

    Filed under:
    USA, Banking, Capital Markets, Insolvency & Restructuring, Insurance, Litigation, Frost Brown Todd LLP, Work-product doctrine, Discovery, Motion to compel, eDiscovery
    Authors:
    Maureen A. Bickley
    Location:
    USA
    Firm:
    Frost Brown Todd LLP
    Determining whether a chapter 11 plan is unconfirmable without a confirmation hearing
    2013-02-18

    In re American Capital Equipment, LLC, 688 F.3d 145 (3d Cir. 2012)

    CASE SNAPSHOT

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Reed Smith LLP, Bankruptcy, Discovery, Due process, Leveraged buyout, Secured creditor, United States bankruptcy court, Third Circuit
    Authors:
    Brian M. Schenker
    Location:
    USA
    Firm:
    Reed Smith LLP
    SIPC trustee may investigate MF Global
    2011-11-14

    On November 4th, the Federal Bankruptcy Court granted the SIPC Trustee's motion to establish procedures for the issuance of subpoenas for document production and depositions in connection with the SIPC Trustee's independent investigation into the business and affairs of MF Global. Access to documents produced by witnesses and attendance at examinations will be limited to the SIPC Trustee and his professionals. The SIPC, SEC and CFTC will have access to the discovery upon the execution of confidentiality agreements.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, Winston & Strawn LLP, Discovery, Witness, Subpoena, Non-disclosure agreement, Capital punishment, US Securities and Exchange Commission, Commodity Futures Trading Commission (USA), Securities Investor Protection Corporation, Trustee, United States bankruptcy court
    Location:
    USA
    Firm:
    Winston & Strawn LLP
    Los Angeles Dodgers' Chapter 11 case: no replay of Texas Rangers' drama
    2011-11-09

    A World Series as exciting as any in memory ended two weeks ago. Notwithstanding the end of the season, the Los Angeles Dodgers’ chapter 11 case offered the promise of more baseball-related thrills. Dodger’s owner Frank McCourt and Major League Baseball (“MLB”) Commissioner Bud Selig appeared headed towards an epic courtroom showdown that promised to rival

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Media & Entertainment, Kelley Drye & Warren LLP, Bankruptcy, Discovery, Motion to compel, Divorce
    Authors:
    Benjamin D. Feder
    Location:
    USA
    Firm:
    Kelley Drye & Warren LLP
    SIPC Trustee takes first steps to thaw frozen customer securities accounts
    2011-11-07

    On November 4, 2011, the SIPC Trustee took his first steps toward transferring frozen customer securities accounts held by MF Global Inc. ("MFGI") when he announced that he will be accepting proposals for the transfer of all customer securities accounts of MFGI (the "Securities Accounts") to another member of the Securities Investor Protection Corporation. This action is in addition to the steps the Trustee took last week to transfer certain segregated commodities accounts from MFGI to other futures commission merchants.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, Reed Smith LLP, Security (finance), Discovery, Commodity, Liquidation, Due diligence, Balance sheet, Subpoena, Non-disclosure agreement, Memorandum opinion, Securities Investor Protection Corporation, Bankruptcy and Insolvency Act 1985 (Canada), Trustee, United States bankruptcy court
    Authors:
    Elizabeth A. McGovern
    Location:
    USA
    Firm:
    Reed Smith LLP
    Court considers privilege assertions in dispute involving asbestos trust, excess liability insurer, and reinsurance
    2011-10-18

    In a suit between a bankruptcy trust established to resolve a defunct corporation’s asbestos-related personal injury liabilities and the corporation’s excess liability insurer that had denied coverage to the trust in connection with the asbestos claims, a court resolved various attorney client privilege and work product protection issues. The insurer had sought various documents related to the handling of the underlying asbestos claims by the trust, among others.

    Filed under:
    USA, Insolvency & Restructuring, Insurance, Litigation, Jorden Burt LLP, Bankruptcy, Waiver, Interest, Work-product doctrine, Discovery, Liability (financial accounting), Reinsurance
    Authors:
    Michael Wolgin
    Location:
    USA
    Firm:
    Jorden Burt LLP
    Second Circuit's opinion may insulate payments previously beyond bounds of Bankruptcy Code Section 546(e)
    2011-09-07

    On June 28, 2011, the Second Circuit, in a 2-1 decision, held that Bankruptcy Code section 546(e) shields from avoidance in bankruptcy cases an issuer's payments to redeem its commercial paper prior to maturity. See Enron Creditors Recovery Corp. v. Alfa, S.A.B. de CV, Enron Creditors Recovery Corp. v. ALFA, S.A.B. de C.V., Nos. 09-5122-bk(L), 09-5142-bk (Con), 2011 U.S. App. LEXIS 13177 (2d Cir. June 28, 2011). The decision marks the first time an appeals court has considered whether redemption payments constitute "settlement payments" under section 546(e).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Seyfarth Shaw LLP, Unsecured debt, Security (finance), Discovery, Commodity broker, Maturity (finance), Systemic risk, Debenture, Commercial paper, Enron, Second Circuit, United States bankruptcy court
    Authors:
    Gus A. Paloian , Ryan Pinkston
    Location:
    USA
    Firm:
    Seyfarth Shaw LLP
    Lehman Brothers disclosure statement approved
    2011-08-31

    On Aug. 30, 2011, the United States Bankruptcy Court for the Southern District of New York approved the disclosure statement with respect to the revised second amended joint Chapter 11 plan of Lehman Brothers Holdings Inc. and its affiliated debtors (the “Debtors”). The order approving the Debtors’ disclosure statement and establishing certain procedures related to the hearing to consider confirmation of the plan (the “order”) can be accessed here.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Debtor, Discovery, Voting, Solicitation, Lehman Brothers, United States bankruptcy court
    Authors:
    Lawrence V. Gelber
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Mets' owners swing for the fences against Madoff trustee
    2011-08-24

    Fred Wilpon, Saul Katz, and their families and affiliated enterprises (the “Wilpon/Katz Group”) last week formally requested the dismissal of the adversary proceeding commenced by Irving Picard, the trustee of Bernard L. Madoff Investment Securities LLC (“BLMIS”). In a two hour hearing before U.S.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White Collar Crime, Kelley Drye & Warren LLP, Bankruptcy, Debtor, Fraud, Discovery, Debt, Mediation, Good faith, Title 11 of the US Code, Trustee, Second Circuit
    Authors:
    Benjamin D. Feder
    Location:
    USA
    Firm:
    Kelley Drye & Warren LLP

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