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    Non-consolidation and True Sale Issues for Insurance Company Sponsors — Part Two
    2017-07-31

    Our two-part article on non-con and true sale issues in insurance contexts continues with a deeper dive into the considerations that distinguish these issues from similar remoteness principles in a Bankruptcy Code context. In Part One, we explained some of the basics of state insurance law that bear on these issues and how these can give rise to different approaches in opinion-giving; in this Part Two, we identify some practical obstacles that arise in these kinds of contexts and opinions.

    A Pennsylvania Hypothetical

    Filed under:
    USA, New York, Insolvency & Restructuring, Insurance, Litigation, Kramer Levin Naftalis & Frankel LLP, New York State Insurance Department, New York State Department of Financial Services, New York Court of Appeals
    Authors:
    Daniel A. Rabinowitz
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel 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
    Atlantic Mutual and Centennial are in rehabilitation, and the rehabilitation court's stay order has been enforced by another forum as applying to product liability claims against their policyholder
    2010-12-08

    On September 14, 2010, a New York state court entered an Order of Rehabilitation for Atlantic Mutual Insurance Company and Centennial Insurance Company (collectively, "Atlantic") to try to resolve Atlantic's insolvency and return it to the marketplace. The court appointed the New York Superintendent of Insurance as the "Rehabilitator" and directed the Rehabilitator to, among other things, take possession and control of Atlantic's property, conduct Atlantic 's business, and remove the causes and conditions that made this rehabilitation proceeding necessary.

    Filed under:
    USA, New York, Insolvency & Restructuring, Insurance, Litigation, McCarter & English LLP, Injunction, Discovery, Ex parte, Liquidation, Comity, New York State Insurance Department, Third Circuit
    Location:
    USA
    Firm:
    McCarter & English LLP
    New York appeals court dismisses suit against MBIA Inc. over bond insurer’s financial restructuring
    2011-01-25

    A New York appeals court recently dismissed one of two lawsuits filed against MBIA Inc. (“MBIA”) by more than a dozen major financial institutions concerning the bond insurer’s financial restructuring. The plaintiffs – owners of insurance policies issued by MBIA for structured finance products, including residential mortgage-backed securities – claimed that the bond insurer’s split into two units was intended to defraud policyholders.

    Filed under:
    USA, New York, Insolvency & Restructuring, Insurance, Litigation, Locke Lord LLP, Bond (finance), Security (finance), Breach of contract, Fraud, Standard of review, Mortgage-backed security, Municipal bond, New York State Insurance Department
    Authors:
    Gregory S. Hoffnagle , Victoria Anderson , Jeanne Kohler
    Location:
    USA
    Firm:
    Locke Lord LLP
    Appellants' brief filed in New York Court of Appeals in case alleging fraudulent restructuring by MBIA
    2011-03-28

    On March 16, 2011, plaintiffs in ABN Amro Bank, et al. v. MBIA Inc., et al. filed their opening brief in the New York Court of Appeals. Plaintiffs are appealing the 3-to-2 decision of an intermediate appellate court dismissing their suit challenging the "fraudulent restructuring" of monoline insurer MBIA. The case, brought by a group of banks that are beneficiaries of MBIA's structured finance-related policies, claims that MBIA transferred $5 billion in assets from MBIA Insurance Corporation (a failing subsidiary) to MBIA Illinois (a stronger subsidiary).

    Filed under:
    USA, New York, Insolvency & Restructuring, Insurance, Litigation, Orrick, Herrington & Sutcliffe LLP, Fraud, Res judicata and issue estoppel, Legal burden of proof, New York State Insurance Department
    Location:
    USA
    Firm:
    Orrick, Herrington & Sutcliffe LLP
    Superintendent of insurance may assert privilege on behalf of liquidating insurer
    2013-04-19

    In Wallis v. Centennial Insurance Co., No. 08-cv-2558 (E.D. Cal. Feb. 1, 2013), Magistrate Judge Allison Claire of the Eastern District of California held that the New York Superintendent of Insurance had the authority to assert the attorney-client privilege on behalf of an insurer that was in the process of being liquidated by the Superintendent.

    Filed under:
    USA, California, New York, Insolvency & Restructuring, Insurance, Litigation, Jenner & Block LLP, Attorney-client privilege, Liquidation, New York State Insurance Department
    Authors:
    David M. Greenwald
    Location:
    USA
    Firm:
    Jenner & Block LLP
    Recent developments concerning Executive Life Insurance Company of New York
    2011-09-02

    We write to provide an important update concerning Executive Life Insurance Company of New York (“ELNY”).

    Filed under:
    USA, New York, Insolvency & Restructuring, Insurance, Faegre Drinker Biddle & Reath LLP, Life insurance, Liquidation, Annuity, Life annuity, New York State Insurance Department
    Authors:
    Timothy J. O'Driscoll
    Location:
    USA
    Firm:
    Faegre Drinker Biddle & Reath LLP
    Attorneys' fees and costs awarded against New York Superintendent for improper bankruptcy filing
    2008-07-03

    The New York Insurance Department, as Liquidator of Nassau Insurance Company, pursued Jeanne Diloreto for 20 years to recover what it contended were assets diverted from Nassau, recovering a judgment in state court that it attempt to execute upon. Superintendent DiNallo ended up filing an involuntary bankruptcy petition against Ms. Diloreto, which was dismissed, in part based upon procedural infirmities.

    Filed under:
    USA, Florida, New York, Insolvency & Restructuring, Insurance, Litigation, Jorden Burt LLP, Bankruptcy, Costs in English law, Bad faith, Malpractice, New York State Insurance Department, United States bankruptcy court
    Location:
    USA
    Firm:
    Jorden Burt LLP
    Thabault v. Chait: completing the Third Circuit's deepening insolvency trilogy
    2009-03-06

    When the United States Court of Appeals for the Third Circuit decided Thabault v. Chait, 541 F.3d 512 (3d Cir. 2008), in September 2008, it was the most significant accounting malpractice decision of last year and perhaps the most significant damages case in the last 20 years. Why? Accounting malpractice cases are filled with pitfalls for unsuspecting plaintiffs. Moreover, accounting firms tend to settle cases in which the plaintiffs survive motions predicated on tried-and-true legal defenses and factual hurdles. The result is that few auditing malpractice cases are tried.

    Filed under:
    USA, Company & Commercial, Insolvency & Restructuring, Insurance, Litigation, Professional Negligence, Jones Day, Shareholder, Audit, Federal Reporter, Accounting, Multidistrict litigation, Negligence, Remand (court procedure), Causation (law), Malpractice, New York State Insurance Department, Chief financial officer, Third Circuit, US District Court for District of New Jersey
    Authors:
    Tracy K. Stratford
    Location:
    USA
    Firm:
    Jones Day
    Case closed: Eastern District of Pennsylvania dismisses Di Loreto’s claims
    2009-04-02

    We have previously reported on the procedurally tortured case between the New York Insurance Department, as liquidator of Nassau Insurance Company, and Jeanne Di Loreto to recover assets contended to have been diverted from Nassau. In the latest salvo, defendants New York Insurance Department, William Costigan, and Eric DiNallo, Mark Peters and Andrew Lorin separately moved to dismiss plaintiff Di Loreto’s Complaints seeking to prevent execution of a judgment obtained against her by the New York Liquidation Bureau.

    Filed under:
    USA, Pennsylvania, Insolvency & Restructuring, Insurance, Litigation, Jorden Burt LLP, Liquidation, Involuntary dismissal, Liquidator (law), Capital punishment, New York State Insurance Department, US District Court for Eastern District of Pennsylvania
    Authors:
    John Black
    Location:
    USA
    Firm:
    Jorden Burt LLP

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