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    Bankruptcy Court Chips Away at Bankruptcy Remoteness of Special Purpose Vehicles
    2016-04-18

    A Chicago bankruptcy court declined to dismiss the Chapter 11 case of a “bankruptcy remote” limited liability company even though the debtor failed to obtain the unanimous consent of its members as required by its operating agreement. See In re Lake Mich. Beach Pottawattamie Resort, LLC, Case No. 15bk42427, 2016 Bankr. LEXIS 1107 (Bankr. N.D. Ill. April 5, 2016).

    Filed under:
    USA, Illinois, Insolvency & Restructuring, Litigation, McGuireWoods LLP, Bankruptcy, Debtor, Fiduciary, Limited liability company, United States bankruptcy court
    Authors:
    Richard J. Mason PC , Patricia K. Smoots
    Location:
    USA
    Firm:
    McGuireWoods LLP
    Running Out of Cash? Your Duties and Options for Winding Down
    2016-02-24

    This post originally appeared on In The (Red): The Business Bankruptcy Blog, which I created for CEOs, CFOs, boards of directors, credit professionals, in-house counsel and others to stay informed about important business bankruptcy issues and developments.

    Filed under:
    USA, Company & Commercial, Insolvency & Restructuring, Litigation, Cooley LLP, Fiduciary
    Authors:
    Robert Eisenbach
    Location:
    USA
    Firm:
    Cooley LLP
    The Venture-Backed Company Running Out Of Cash: Fiduciary Duties And Wind Down Options
    2016-02-16

    Many start-up companies backed by venture capital financing, especially those still in the development phase or which otherwise are not cash flow breakeven, at some point may face the prospect of running out of cash. Although many will timely close another round of financing, others may not. This post focuses on options available to companies when investors have decided not to fund and the company needs to consider a wind down.

    Filed under:
    USA, Insolvency & Restructuring, Cooley LLP, Fiduciary, Start-up companies
    Authors:
    Robert Eisenbach
    Location:
    USA
    Firm:
    Cooley LLP
    Bankruptcy CSI: did the CEO leave evidence of wrongdoing?
    2016-01-18

    When is there sufficient evidence to hold that a fiduciary’s debt to an ERISA benefit plan is non-dischargeable in bankruptcy?  The Bankruptcy Court for the Eastern District of New York recently held in In re Kern, Case No. 13-08096 (Dec.

    Filed under:
    USA, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Bankruptcy, Employee Retirement Income Security Act 1974 (USA), Fiduciary
    Authors:
    Peter R. Morrison
    Location:
    USA
    Firm:
    Squire Patton Boggs
    Recent Developments in Acquisition Finance
    2016-01-12

    Two recent court decisions may result in a broadening of the range of options available to an equity sponsor in respect of an insolvent portfolio company. The first decision may provide increased flexibility in structuring asset sales in certain chapter 11 settings, by utilizing escrows and other techniques to potentially avoid the need to apply asset-sale proceeds strictly in accordance with creditor priorities under the U.S. Bankruptcy Code.

    Filed under:
    USA, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Dechert LLP, Conflict of interest, Unsecured debt, Fiduciary, Title 11 of the US Code, Delaware General Corporation Law
    Authors:
    Jeffrey M. Katz , Scott M. Zimmerman
    Location:
    USA
    Firm:
    Dechert LLP
    Personnel files and documents relating to "hand-picked" directors ruled discoverable in breach of fiduciary duty action against private equity firm
    2015-11-23

    A Delaware bankruptcy judge recently ruled that information concerning the compensation and performance of “hand-picked” directors of a private equity firm’s portfolio company was discoverable in an action for breach of fiduciary duty against the private equity firm.

    Filed under:
    USA, Delaware, Company & Commercial, Insolvency & Restructuring, Litigation, Duane Morris LLP, Fiduciary, Discovery
    Authors:
    Paul D. Moore , Keri L. Wintle
    Location:
    USA
    Firm:
    Duane Morris LLP
    Tuition clawbacks
    2015-11-13

    A recent and emerging trend in Chapter 7 bankruptcy cases is lawsuits brought by Chapter 7 trustees to recover from colleges and universities pre-petition tuition payments made by Chapter 7 debtors for their adult children’s post-secondary education. While many of these cases have settled, thus not resulting in reported decisions, there are four written decisions to date on this subject.1 This article discusses the legal theory behind these avoidance actions and explores the universe of case law.

    Filed under:
    USA, Insolvency & Restructuring, Murtha Cullina LLP, Debtor, Fiduciary, US Code, Title 11 of the US Code, Trustee
    Authors:
    Ashley S. Whyman
    Location:
    USA
    Firm:
    Murtha Cullina LLP
    Quadrant Structured Prods. Co. v. Vertin, C.A. No. 6990-VCL (Del. Ch. Oct. 20, 2015) (Laster, V.C.)
    2015-10-20

    In this post-trial decision, the Court of Chancery held that a company’s repurchase of senior notes from an insider approximately six months after returning to solvency did not violate the express or implied terms of the indenture, constitute a fraudulent transfer, nor give rise to fiduciary duty claims on which the creditor had standing to sue.

    Filed under:
    USA, Delaware, Company & Commercial, Insolvency & Restructuring, Litigation, Potter Anderson & Corroon LLP, Fiduciary, Court of Chancery
    Location:
    USA
    Firm:
    Potter Anderson & Corroon LLP
    A warning to directors and officers — failure to give proper WARN Act notice may breach your fiduciary duty
    2015-10-09

    At first glance, Stanziale v. MILK072011, looks like someone suing over a bad expiration date and conjures up images of Ron Burgundy proclaiming “milk was a bad choice.” But in actuality Stanziale is much more interesting: it answers whether one can breach their fiduciary duty by exposing an employer to a claim under the aptly-named WARN Act, which requires employers to tip off their workers to a possible job loss.

    Filed under:
    USA, Company & Commercial, Insolvency & Restructuring, Litigation, Mintz, Breach of contract, Fiduciary, Worker Adjustment and Retraining Notification Act 1988 (USA)
    Authors:
    Michael S. Arnold
    Location:
    USA
    Firm:
    Mintz
    Justice Friedman allows breach of fiduciary duty claim to proceed against corporate directors under Delaware Law
    2015-09-16

    In AP Services, LLP v. Lobell et. al, No. 651613/2012, 2015 NY Slip Op 31115(U) (N.Y. Sup. Ct. June 19, 2015) (argued Feb.

    Filed under:
    USA, Delaware, Company & Commercial, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Sheppard Mullin Richter & Hampton LLP, Breach of contract, Fiduciary
    Authors:
    Bradley Rank , Nirav Bhatt
    Location:
    USA
    Firm:
    Sheppard Mullin Richter & Hampton LLP

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