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    Third Circuit upholds liability of PricewaterhouseCoopers in Ambassador insolvency
    2008-10-07

    The United States Court of Appeals for the Third Circuit recently upheld a $182.9 million judgment against PricewaterhouseCoopers, LLP (“PWC”) for allegedly contributing to the failure of Ambassador Insurance Company (“Ambassador”) through negligent auditing. Thabault v. Chait, No. 06-2209 (3d Cir., Sept. 9, 2008).

    Filed under:
    USA, New Jersey, Insolvency & Restructuring, Insurance, Professional Negligence, Locke Lord LLP, Audit, Negligence, Causation (law), Third Circuit
    Location:
    USA
    Firm:
    Locke Lord LLP
    The Twilight Zone Redux
    2008-10-17

    Recent Developments in the Zone of Insolvency

    Filed under:
    USA, Insolvency & Restructuring, Dinsmore & Shohl LLP, Shareholder, Fiduciary, Federal Reporter, Debt, Bank of New York Mellon, Delaware Court of Chancery, Delaware Supreme Court, Third Circuit
    Location:
    USA
    Firm:
    Dinsmore & Shohl LLP
    Delaware courts clarify fiduciary duties owed by directors of troubled companies
    2008-10-31

    Two recent decisions by the Delaware Supreme Court clarify the fiduciary duties owed to creditors by directors of Delaware corporations that are insolvent or operating in the zone of insolvency. First, in North American Catholic Educational Programming Foundation, Inc. v. Gheewalla, the Delaware Supreme Court, in a case of first impression, addressed the ability of creditors to assert claims for breach of fiduciary duty against directors of a Delaware corporation that is insolvent or operating within the zone of insolvency.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, McDermott Will & Emery, Bankruptcy, Shareholder, Breach of contract, Fiduciary, Board of directors, Beneficiary, Good faith, Business judgement rule, Derivative suit, Delaware General Corporation Law, Delaware Court of Chancery, Delaware Supreme Court, Third Circuit, Court of equity
    Location:
    USA
    Firm:
    McDermott Will & Emery
    Delaware bankruptcy court holds that private equity sale benefits from section 546(e) “settlement payment” safe harbor defense to fraudulent transfer action
    2008-10-31

    The United States Bankruptcy Court for the District of Delaware inElway Company, LLP v. Miller (In re Elrod Holdings Corp.), 2008 WL 4414315 (Bankr. D. Del. Sept. 30, 2008) recently held that transfers in payment of a private stock sale to insiders constituted “settlement payments” under section 546(e) of the Bankruptcy Code and were therefore immune from avoidance as constructively fraudulent transfers by the chapter 7 trustee.

    Filed under:
    USA, Delaware, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Public company, Private equity, Security (finance), Fraud, Safe harbor (law), Federal Reporter, Privately held company, Limited partnership, Leveraged buyout, Title 11 of the US Code, Trustee, Delaware Supreme Court, United States bankruptcy court, Third Circuit, US District Court for District of Delaware
    Location:
    USA
    Firm:
    Paul, Weiss, Rifkind, Wharton & Garrison LLP
    Third Circuit tackles ‘core proceedings’ issue
    2009-01-19

    The United States Court of Appeals for the Third Circuit has issued a decision that provides an important summary concerning the circumstances under which state law causes of action asserted between nondebtor parties are sufficiently interconnected with claims brought against a debtor to be considered “core proceedings,” which may be determined as part of a bankruptcy case. In re Exide Technologies, 544 F.3d 196 (3d. Cir. 2008).  

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Reed Smith LLP, Bankruptcy, Debtor, Federal Reporter, Forum selection clause, Title 11 of the US Code, United States bankruptcy court, Third Circuit
    Location:
    USA
    Firm:
    Reed Smith LLP
    LBO payments for privately-held company not subject to avoidance
    2009-01-30

    Introduction

    Filed under:
    USA, Delaware, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Public company, Security (finance), Fraud, Interest, Privately held company, Limited partnership, Subsidiary, Title 11 of the US Code, Trustee, United States bankruptcy court, Third Circuit, US District Court for District of Delaware
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    $188 million insider preference judgment affirmed by Third Circuit
    2009-02-11

    The U.S. Court of Appeals for the Third Circuit held on Feb. 3, 2009, that a debtor’s “strategic partnership” vendor was liable as a non-statutory insider for preferential payments it received approximately four months prior to the debtor’s bankruptcy. In re Winstar Communications, Inc., ___F.3d ___, 2009 U.S. App. LEXIS 1953, at *1 (3d Cir. 2/3/09). The court affirmed the bankruptcy court’s judgment (an 88-page decision with detailed fact findings), rendered after a 21-day bench trial that included 1,400 exhibits and 39 witnesses.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Conflict of interest, Bankruptcy, Debtor, Breach of contract, Board of directors, Interest, Federal Reporter, Bench trial, United States bankruptcy court, Third Circuit, Seventh Circuit
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    Third Circuit predicts New Jersey courts would recognize "deepening insolvency” damages
    2009-02-28

    In Thabalt v Chait (Nov. 2008), the U.S. Court of Appeals for the Third Circuit upheld an award of damages against PriceWaterhouseCoopers LLP (PWC) based on PWC’s alleged negligent audit of the Ambassador Insurance Company. Plaintiff, the Vermont Insurance

    Filed under:
    USA, New Jersey, Insolvency & Restructuring, Faegre Drinker Biddle & Reath LLP, Audit, Interest, Debt, Liability (financial accounting), Negligence, Liquidation, Remand (court procedure), KPMG, Supreme Court of the United States, Third Circuit, New Jersey Supreme Court
    Location:
    USA
    Firm:
    Faegre Drinker Biddle & Reath 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
    Third Circuit elaborates on non-statutory insiders
    2009-03-31

    Introduction

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Credit (finance), Debtor, Broadband networks, Fair market value, Refinancing, Line of credit, Subsidiary, United States bankruptcy court, Third Circuit
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP

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