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    Rescission effective upon filing of rescission complaint
    2010-06-09

    In a decision not designated for publication, the United States District Court for the Northern District of California, applying California law, has held that an insurer's declaratory judgment complaint for rescission effectuated the rescission of the policy and that the subsequent coverage litigation confirmed the validity of the rescission. In re Sonic Blue Inc., 2010 WL 2034798 (N.D. Cal. May 19, 2010).

    Filed under:
    USA, California, Company & Commercial, Insolvency & Restructuring, Insurance, Litigation, Wiley Rein LLP, Breach of contract, Fraud, Fiduciary, Estoppel, Bad faith, Prejudice, Laches (equity), US District Court for Northern District of California
    Location:
    USA
    Firm:
    Wiley Rein LLP
    Court holds coverage for Madoff suits excluded under policy’s insolvency exclusion
    2010-06-08

    The US District Court for the District of Connecticut recently dismissed a customer suit against an insurer, based upon its determination that all of the underlying claims were excluded by the policy’s Insolvency Exclusion.1 Associated Community Bancorp, Inc., et al. v. The Travelers Companies, Inc., et al.

    Filed under:
    USA, Connecticut, Banking, Insolvency & Restructuring, Insurance, Litigation, Locke Lord LLP, Bankruptcy, Security (finance), Liquidation, Investment company, US District Court for District of Connecticut
    Authors:
    Victoria Anderson , Jeanne Kohler , M Machua Millett
    Location:
    USA
    Firm:
    Locke Lord LLP
    Inadequate consideration exclusion applies to claim for debt restructuring transaction
    2010-06-07

    The United States Court of Appeals for the Third Circuit, applying New York law, has held that an inadequate consideration exclusion unambiguously bars coverage for a lawsuit arising out of a debt restructuring transaction. Delta Financial Corp. v. Westchester Surplus Ins. Co. (In re Delta Financial Corp.), 2010 WL 1784054 (3d Cir. May 5, 2010).

    Filed under:
    USA, New York, Insolvency & Restructuring, Insurance, Litigation, Wiley Rein LLP, Unsecured debt, Security (finance), Breach of contract, Fraud, Fiduciary, Consideration, Debt, Foreclosure, Misrepresentation, Cashflow, Debt restructuring, Certificate of deposit, Secured loan, United States bankruptcy court, Third Circuit
    Location:
    USA
    Firm:
    Wiley Rein LLP
    Orderly liquidation of financial companies, including executive compensation clawback, under the Dodd-Frank Wall Street Reform and Consumer Protection Act
    2010-07-20

    Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“WSRCPA”) represents Congress’ attempt to address companies considered “too big to fail.” The statute creates a new “orderly liquidation authority” (“OLA”), which allows the Federal Deposit Insurance Corporation (“FDIC”) to seize control of a financial company1 whose imminent collapse is determined to threaten the financial system as a whole. Commencement of a receivership under the OLA would preempt any proceedings under the Bankruptcy Code.

    Filed under:
    USA, Banking, Capital Markets, Insolvency & Restructuring, Insurance, Cadwalader Wickersham & Taft LLP, Debtor, Consumer protection, Executive compensation, Federal Reserve Board, Liquidation, Holding company, Depository institution, Bank holding company, Systemic risk, Subsidiary, Federal Deposit Insurance Corporation (USA), Securities Investor Protection Corporation, Credit rating agency, Dodd-Frank Wall Street Reform and Consumer Protection Act 2010 (USA)
    Authors:
    Mark C. Ellenberg
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Policy proceeds not property of bankruptcy estate because payment of proceeds would not affect estate assets
    2010-07-27

    The United States Bankruptcy Court for the District of Delaware has held that policy proceeds were not part of the insured entity’s bankruptcy estate because previous entity claims were dismissed with prejudice, it was highly speculative that the bankruptcy trustee would approve indemnification of directors and officers and the policy’s priority of payment provision provided that entity coverage was only available after payment of proceeds for direct coverage to insured persons. In re Downey Fin. Corp., 428 B.R. 595 (D. Del. Bankr. May 7, 2010).

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Insurance, Litigation, Wiley Rein LLP, Bankruptcy, Security (finance), Class action, Board of directors, Interest, Prejudice, Subsidiary, Federal Deposit Insurance Corporation (USA), Office of Thrift Supervision, United States bankruptcy court, US District Court for District of Delaware
    Location:
    USA
    Firm:
    Wiley Rein LLP
    Court rules D&O policy’s Side-A benefits not property of bankrupt estate
    2010-09-09

    A Maryland bankruptcy court has declared that Side A benefits under a D&O policy are not property of the bankrupt estate, with the result that two former executives who have been accused of making illegal payments and diverting funds from their former employer to start a new venture may be able to recoup certain defense costs. In re: TMST, Inc. f/k/a Thornburg Mortgage, Inc., et al., Docket No. 09-17787 (Bankr.D.Md. Aug. 17, 2010).

    Filed under:
    USA, Insolvency & Restructuring, Insurance, Litigation, Locke Lord LLP, Bankruptcy, Costs in English law, Debtor, Breach of contract, Interest, Good faith, Trustee, United States bankruptcy court
    Authors:
    Victoria Anderson , Jeanne Kohler
    Location:
    USA
    Firm:
    Locke Lord LLP
    Can you have your pie and eat it too? Information shared between debtors and ad hoc committees need not always be disclosed
    2010-09-24

    In re Leslie Controls, Inc., No. 10-12199 (Bankr. D. Del. Sept. 21, 2010), involved a very common scenario. A company in financial difficulty sought to negotiate a consensual restructuring with an ad hoc committee and, in that context, disclosed various confidential analyses. In this particular case, the company had asbestos exposure, the ad hoc committee represented asbestos plaintiffs, and the shared information included a memorandum and numerous e-mails concerning potential insurance recoveries under various bankruptcy scenarios.

    Filed under:
    USA, Insolvency & Restructuring, Insurance, Litigation, Bracewell LLP, Share (finance), Confidentiality, Bankruptcy, Debtor, Waiver, Interest, Attorney-client privilege
    Location:
    USA
    Firm:
    Bracewell LLP
    The common interest privilege
    2010-10-12

    A discovery dispute gave the bankruptcy court an opportunity to rule on the common interest privilege which, the court said, has completely replaced the joint defense privilege for information sharing among clients with different attorneys, citing In re Teleglobe Communications Corp., 493 F.3d 345, 364 n. 20 (3d Cir. 2007). Leslie Controls, Inc., Case No. 10-12199 (Bankr. D. Del. 9/21/10)(Sontchi, B.J.).

    Filed under:
    USA, Insolvency & Restructuring, Insurance, Litigation, Fox Rothschild LLP, Share (finance), Bankruptcy, Debtor, Waiver, Interest, Federal Reporter, Work-product doctrine, Discovery, Futures contract, United States bankruptcy court, Third Circuit
    Location:
    USA
    Firm:
    Fox Rothschild LLP
    Ohio Supreme Court rules on Ohio's Liquidation Act and payment of interest
    2010-10-07

    Full text of the Court's opinion

    In a 7-0 decision, the Ohio Supreme Court in Hudson v. Petrosurance, Inc., Slip Opinion No. 2010-Ohio-4505, held that the Ohio's Liquidation Act does not authorize the Superintendent of Insurance to pay interest to an insurer’s creditors and other preferred claimants on allowed claims before paying the funds remaining in the insolvent estate to the insurer's shareholders.

    Filed under:
    USA, Ohio, Insolvency & Restructuring, Insurance, Litigation, Bricker & Eckler LLP, Shareholder, Interest, Liquidation, Preferred stock, New York State Insurance Department, Ohio Supreme Court
    Authors:
    Miranda Motter
    Location:
    USA
    Firm:
    Bricker & Eckler LLP
    The incredible shrinking notice period: Connecticut's strict reporting stance on data breaches and security incidents
    2010-10-14

    Perhaps prompted by revelations that one or more Connecticut-based insurers failed to notify individuals or report known data security incidents or breaches until weeks, or even months, after the data had been lost or stolen, the state's Insurance Commissioner has issued stringent new reporting obligations applicable to all entities regulated by the Connecticut Department of Insurance (CDI), including, for example, insurers, agents, brokers, adjusters, health maintenance organizations, preferred provider networks, discount health plans and certain consultants and utilization review companie

    Filed under:
    USA, Connecticut, Insolvency & Restructuring, Insurance, BakerHostetler, Data security, Information privacy, ISP, Personally identifiable information, Data, Computer network, Subscription business model, Health maintenance organization, Insurance commissioner
    Authors:
    John S. Mulhollan
    Location:
    USA
    Firm:
    BakerHostetler

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