In a matter of first impression, the Delaware Court of Chancery held inQuadrant Structured Products Co. Ltd. v. Vertin, No. 6990-VCL, 2015 BL 128889 (Del. Ch. May 4, 2015), that a creditor suing derivatively on behalf of an insolvent corporation does not lose standing to prosecute the derivative claims if the corporation becomes solvent while the lawsuit is pending. In so ruling, the court expressly rejected a “continuous insolvency” or an “irretrievable insolvency” requirement for standing purposes.

Today’s post covers a recent decision by the United States Bankruptcy Court for the Southern District of Texas in the Chiron Equities, LLCcase. In that case, the court ordered a preliminary injunction to stop non-bankruptcy court litigation in a dispute between a majority shareholder, a minority shareholder, and his wife.

Who doesn’t love a good catch-all provision? In a world of infinite possibilities, attorneys often find themselves drafting language designed to encompass a plethora of contingencies. Are such efforts sometimes overkill? Perhaps. Nevertheless, given our imperfect ability to predict the future, such provisions are often necessary and appropriate.

In In re Intervention Energy Holdings, LLC, the question before the United States Bankruptcy Court for the District of Delaware was whether an investor who “bought and paid for [one] Common Unit (including all rights related thereto),”

When Can a Subsidiary Be Liable for the Actions of Its Owners?

Does the bankruptcy filing of a limited liability company without the approval of its “Special Member,” the secured lender serving as “blocking director,” render that filing infirm as unauthorized and subject to dismissal?  Not necessarily, held the United States Bankruptcy Court for the Northern District of Illinois in a 

Do you serve on your condominium’s board as a fun way to meet your neighbors and test out your governance skills? What seems like a low-commitment diversion can balloon into a stressful time suck – or worse.  You may be held personally liable for breaching fiduciary duties to your condo.  And if you fall into really bad luck and end up in bankruptcy, you may not even be able to discharge debts for such liability, as a recent Fifth Circuit decision reminds us.  

The Supreme Court of Canada’s decision in (Re) Indalex has changed the landscape for both lenders and borrowers in Canada who sponsor registered defined benefit pension plans. For lenders, carefully drafted loan documentation and effective planning can enhance the protection of a secured lender’s position in the face of the broadened scope of a deemed trust applicable to a borrower’s defined benefit pension obligations.

In (Re) Indalex, the Supreme Court of Canada (SCC) affirmed the super-priority of the security granted to a debtor-in-possession (DIP) lender, over a deemed trust created under provincial pension legislation, in the context of a Companies’ Creditors Arrangement Act (CCAA) proceeding. The SCC’s analysis leaves open further issues.

Directors and officers of corporations are often subject to potential personal liabilities as a result of their positions. This potential for personal liability may be increased in the insolvency context, where a corporation’s creditors will seek to collect on certain debts from alternate sources, such as directors and officers. Directors and officers often utilize insurance and various court mechanisms in order to mitigate their personal liabilities.