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    Clawback of fraudulent transfers from investors—“good faith” defense update
    2010-09-30

    Given the overarching Madoff Ponzi scheme as well as other mini-Madoff schemes that surfaced in its wake, many have been following issues arising from the ability of a trustee to claw back transfers (either as preferential or as fraudulent transfers) from investors who redeemed their interests in a private investment fund or managed account that turned out to be a Ponzi scheme. The law generally provides that an investor’s principal investment is protected so long as it is received in good faith and for value.

    Filed under:
    USA, New York, Capital Markets, Insolvency & Restructuring, Litigation, White Collar Crime, Katten Muchin Rosenman LLP, Fraud, Statute of limitations, Limited liability company, Hedge funds, Legal burden of proof, Good faith, Investment funds, United States bankruptcy court, US District Court for the Southern District of New York
    Authors:
    Anthony L. Paccione
    Location:
    USA
    Firm:
    Katten Muchin Rosenman LLP
    Auditor liability
    2010-10-04

    On September 30th, the Sixth Circuit affirmed the dismissal of the bankruptcy trustee's lawsuit against Deloitte & Touche, the debtor's former auditor. The trustee alleged that Deloitte negligently failed to uncover and report unsound related-party transactions by the debtor's sole shareholder and CEO, and aided and abetted the CEO's breach of his fiduciary duty to the debtor. Affirming dismissal, the Court held the trustee failed to allege reliance upon Deloitte's audits and the statute of limitations bars the aiding and abetting claim.

    Filed under:
    USA, Company & Commercial, Insolvency & Restructuring, Litigation, Winston & Strawn LLP, Bankruptcy, Shareholder, Debtor, Breach of contract, Fiduciary, Audit, Statute of limitations, Limited liability partnership, Negligence, Deloitte, Chief executive officer, Trustee, Sixth Circuit
    Location:
    USA
    Firm:
    Winston & Strawn LLP
    Knowledge is power -- or at least triggers the ERISA statute of limitations
    2010-10-01

    The Sixth Circuit continues to liberally define the "actual knowledge" required to trigger the 3-year ERISA statute of limitations and, in doing so, affirmed summary judgment in favor of the defendants in Brown v Owens Corning Investment Review (Case No. 09-3692).

    Filed under:
    USA, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Bankruptcy, Employee Retirement Income Security Act 1974 (USA), Breach of contract, Fiduciary, Statute of limitations, Federal Reporter, Eighth Circuit, Sixth Circuit
    Authors:
    Emily E. Root
    Location:
    USA
    Firm:
    Squire Patton Boggs
    Bankruptcy judge approves procedures to facilitate claw back litigation against Madoff investors
    2010-11-24

    A recent bankruptcy court decision, which approved procedures governing upcoming claw back litigation, paves the way for the start of long-feared claw back litigation against investor victims of the Madoff fraud. The claw back suits will seek to recover funds withdrawn from Madoff accounts prior to the revelation of the scheme. Many had hoped that SIPC Trustee Irving Picard might refrain from bringing mass law suits against these so-called "net winners" because of the immense harm such suits will harm to people who have already suffered enormously from the fraud.

    Filed under:
    USA, Capital Markets, Insolvency & Restructuring, Litigation, White Collar Crime, Herrick Feinstein LLP, Bankruptcy, Fraud, Statute of limitations, Mediation, Good faith, Securities Investor Protection Corporation, Trustee, United States bankruptcy court
    Authors:
    Howard R. Elisofon , Steven D. Feldman
    Location:
    USA
    Firm:
    Herrick Feinstein LLP
    What is the "primary purpose" of a credit transaction under the Truth In Lending Act? The Third Circuit will look beyond the facade to find out
    2010-12-19

    In St. Hill v. Tribeca Lending Corp., Case No. 09-2214, 2010 WL 2997724 (3rd Cir. Dec. 8, 2010), the Third Circuit showed that, in determining whether the Truth In Lending Act (TILA) applied to a credit transaction, it would look beyond obvious facts to ascertain a transaction's "primary purpose."

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Foley & Lardner LLP, Bankruptcy, Credit (finance), Collateral (finance), Statute of limitations, Consideration, Testimony, Mortgage loan, Refinancing, Trustee, Third Circuit
    Authors:
    Trent M. Johnson
    Location:
    USA
    Firm:
    Foley & Lardner LLP
    State court collections - South Carolina
    2011-05-26
    1. Learn About Your Client and the Debtor.

    Before you accept a collection case, make sure you know your client’s business and the debtor’s business.

    Filed under:
    USA, South Carolina, Company & Commercial, Insolvency & Restructuring, Litigation, Nexsen Pruet, Debtor, Consumer protection, Collateral (finance), Statute of limitations, Personal jurisdiction, Debt, Foreclosure, Contingent fee, American Airlines, United States bankruptcy court
    Location:
    USA
    Firm:
    Nexsen Pruet
    New York bankruptcy court holds that Bankruptcy Code’s two-year extension of time to bring actions applies to foreign representatives in Chapter 15 cases
    2011-05-31

    Section 108 of the Bankruptcy Code grants a two-year extension of time for a trustee in bankruptcy (or a debtor in possession) to bring law suits, provided that the applicable period to sue didn’t expire before the petition date. It also gives a short extension to the trustee for filing pleadings, curing defaults, and performing other acts on behalf of the debtor. These provisions afford a trustee and debtor in possession valuable time to discover and evaluate potential causes of action and to perform other acts to preserve the debtor’s rights.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Bankruptcy, Debtor, Security (finance), Statute of limitations, Investment management, Liquidation, Default (finance), Debtor in possession, Liquidator (law), US Congress, Title 11 of the US Code, Trustee, United States bankruptcy court
    Authors:
    Alan W Kornberg , Stephen J. Shimshak , Claudia R Tobler
    Location:
    USA
    Firm:
    Paul, Weiss, Rifkind, Wharton & Garrison LLP
    Landlord’s corner
    2011-06-15

    In re Heller Ehrman, LLP No. 10-CV-03134 2011 WL 635224 (N.D. Cal. Feb. 11, 2011)

    In In re Heller Ehrman, LLP, the court analyzed whether the statutory cap imposed on a landlord’s damages resulting from the rejection of a lease should be computed based on the time remaining in the lease, or the full damages resulting from the rejection. While noting a split of authority, the District Court determined that the computation of the cap should be based on a temporal measure to be consistent with statutory language.

    Filed under:
    USA, California, Insolvency & Restructuring, Litigation, Real Estate, Reed Smith LLP, Debtor, Breach of contract, Landlord, Leasehold estate, Statute of limitations, Title 11 of the US Code
    Authors:
    Derek J. Baker
    Location:
    USA
    Firm:
    Reed Smith LLP
    9th Circ. panel bolsters trustees’ reach-back powers
    2015-04-07

    Editor’s note: this post originally appeared in Law360.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, White Collar Crime, Greenberg Glusker Fields Claman & Machtinger LLP, Bankruptcy, Statute of limitations, Trustee, Bankruptcy Appellate Panel
    Location:
    USA
    Firm:
    Greenberg Glusker Fields Claman & Machtinger LLP
    “Life is full of tough choices”: Sixth Circuit considers interplay between change of venue and choice of law rules.
    2015-03-26

    As Ursula the Sea Witch once said “Life’s full of tough choices, isn’t it?”  The Sixth Circuit was recently faced with its own “tough choice” on choice of law in Sutherland v. DCC Litigation Facility, Inc., No. 13-1497 (6th Cir. Feb.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, Statute of limitations, Multidistrict litigation, Choice of law, Sixth Circuit
    Location:
    USA
    Firm:
    Weil Gotshal & Manges LLP

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