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    Court rules Houston Astros cannot strike out fiduciary duties in bankruptcy
    2014-03-05

    Introduction

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Dechert LLP, Bankruptcy, Legal personality, Fiduciary, Limited liability company, Limited partnership, Debtor in possession, Comcast
    Location:
    USA
    Firm:
    Dechert LLP
    What's "commercially reasonable" for Article 9 foreclosure sales?
    2014-01-16

    Since the financial crisis, sales under Section 363 of the Bankruptcy Code have provided an increasingly popular way for secured creditors of distressed businesses to recover their loans.  However, despite the advantages of Section 363 sales, the significant expense and time required to conduct a Bankruptcy sale has caused secured creditors to pursue less comprehensive solutions.  One alternative for recouping value from a troubled loan is an Article 9 foreclosure sale under the Uniform Commercial Code (UCC).

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Blank Rome LLP, Collateral (finance), Fiduciary, Foreclosure, Uniform Commercial Code (USA)
    Authors:
    Ramesh Dhanaraj
    Location:
    USA
    Firm:
    Blank Rome LLP
    Personal jurisdiction
    2013-11-28

    Tenth Circuit holds that Canadian nationals who conspire to commit a breach of fiduciary duty against a Delaware corporation operating exclusively in Oklahoma are subject to personal jurisdiction in Oklahoma despite their lack of physical contact with the state.  Canadian law firm alleged to have assisted the conspirators is not, however, subject to personal jurisdiction.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Baker McKenzie, Fiduciary, Personal jurisdiction, Delaware General Corporation Law, Tenth Circuit
    Authors:
    David Zaslowsky , Grant Hanessian
    Location:
    USA
    Firm:
    Baker McKenzie
    Ninth Circuit rules that withdrawal liability may be discharged in bankruptcy
    2013-11-01

    In a decision that comes as welcome news to some employers, the Ninth Circuit Court of Appeals recently ruled that an employer that incurred withdrawal liability to a multiemployer pension plan had not become a plan fiduciary by failing to pay the withdrawal liability, and could discharge that liability in bankruptcy.

    Filed under:
    USA, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Trucker Huss APC, Bankruptcy, Employee Retirement Income Security Act 1974 (USA), Debtor, Fiduciary, Bankruptcy discharge, Ninth Circuit
    Authors:
    Robert Frank Schwartz
    Location:
    USA
    Firm:
    Trucker Huss APC
    Is there a bankruptcy lawyer in the house?
    2013-11-04

    When businesses pay for goods and services, they generally like to receive them.  Unfortunately, as any bankruptcy lawyer will tell you, this consistent desire is not matched by uniform experience.

    Filed under:
    USA, Insolvency & Restructuring, Reed Smith LLP, Bankruptcy, Fiduciary
    Authors:
    Mark D. Silverschotz , Douglas J. Wood
    Location:
    USA
    Firm:
    Reed Smith LLP
    Bank has no obligation to inform borrower of bank’s impending failure
    2013-10-25

    One of the ironic issues for failing banks has been the fact that banks that they have had to continue to deal with their borrowers and depositors in the ordinary course of business even though they are already in the queue for resolution by the FDIC. So for example, loans continue to get renewed and documents executed. What happens if you renew a loan shortly before the bank fails, do you have some sort of defense to enforcement of the loan when the successor bank or the FDIC makes demand on you?

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Bryan Cave Leighton Paisner (Bryan Cave), Surety, Debtor, Fraud, Fiduciary, Federal Deposit Insurance Corporation (USA)
    Authors:
    Jerry Blanchard
    Location:
    USA
    Firm:
    Bryan Cave Leighton Paisner (Bryan Cave)
    Supreme Court makes it harder for trust beneficiaries to prove "defalcation" by fiduciary in bankruptcy
    2013-09-13

    The U.S. Supreme Court, in Bullock v. BankChampaign, N.A., has arguably made it harder for damaged beneficiaries to prevent a negligent or self-interested trustee from filing a bankruptcy case and escaping debts owed to the trust’s beneficiaries. Individual debtors file bankruptcy cases to obtain a discharge of their debts.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Quarles & Brady LLP, Bankruptcy, Debtor, Fiduciary, Beneficiary, Debt, United States bankruptcy court
    Authors:
    Christopher Combest
    Location:
    USA
    Firm:
    Quarles & Brady LLP
    Mechanics' lien trust fund debts not dischargeable in bankruptcy – what were you thinking?
    2013-07-29

    In a recent unanimous decision, the United States Supreme Court made it more difficult to avoid a bankruptcy debtor discharging a debt tied to "defalcation while acting in a fiduciary capacity." [1] In Bullock, the Court stated that a defalcation, or misappropriation of funds, requires a

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Sherman & Howard LLC, Bankruptcy, Fiduciary, Debt, Supreme Court of the United States
    Authors:
    Peter A. Cal
    Location:
    USA
    Firm:
    Sherman & Howard LLC
    Severe consequences for franchisor executives: personal liability and non-dischargeable debt
    2013-07-24

    “Do not pass Go, do not collect $200” is a phrase we all remember from the childhood game Monopoly.  Like Monopoly, state franchise sales laws have rules and regulations that must be followed.  A franchisor’s failure to follow these basic procedural rules for selling franchises can result in self-destruction. 

    Filed under:
    USA, Franchising, Insolvency & Restructuring, Litigation, Whiteford Taylor & Preston LLP, Fiduciary, Prospectus (finance), Embezzlement, United States bankruptcy court
    Authors:
    David L. Cahn
    Location:
    USA
    Firm:
    Whiteford Taylor & Preston LLP
    Bullock cannot save ERISA fiduciary, a sole corporate shareholder whose company failed to make multiemployer fund contributions, from being unable to discharge his liability through personal bankruptcy
    2013-07-10

    Fiduciaries who breach their duties may pay the consequences far longer than they may think, for they may not even be able to escape liability through personal bankruptcy.  In Raso v. Fahey (In re Fahey), No. 11-1118 (June 11, 2013), the U.S Bankruptcy Court for the District of Massachusetts became the first court to apply the new defalcation guidelines laid down by the Supreme Court in Bullock v. BankChampaign, NA, 133 S. Ct.

    Filed under:
    USA, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Seyfarth Shaw LLP, Shareholder, Employee Retirement Income Security Act 1974 (USA), Fiduciary, Bankruptcy Appellate Panel
    Authors:
    Ronald J. Kramer
    Location:
    USA
    Firm:
    Seyfarth Shaw LLP

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