Mergers & Acquisitions General Business Bankruptcy

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Insolvency in the Fashion Retail Sector: Understanding and managing the risks of an insolvent acquisition

Opportunity Arises Out of Adversity - The recent global financial crisis has seen consumers tighten their belts and the retail industry as a whole has faced increasing pressure. Profits warnings have peppered the...more

Delaware Court of Chancery Rejects Contemporaneous Ownership Requirement For Creditors Asserting Derivative Claims

In Quadrant Structured Products Co. v. Vertin, C.A. No. 6990-VCL, 2014 Del. Ch. LEXIS 193 (Del. Ch. Oct. 1, 2014), the Delaware Court of Chancery held that when creditors of insolvent firms assert derivative claims, they need...more

Financial Services Weekly News Roundup - October 2014 #3

Editor’s Note - Looking Ahead: December 1 Effective Date for FINRA Consolidated Supervision Rules. The new FINRA Supervision rules, approved by the SEC in December 2013, become effective on December 1, 2014. The new...more

Recent Developments in Acquisition Finance

Several recent legal and regulatory developments in the U.S. will likely alter the makeup of the group of arrangers and financiers willing to arrange and provide financing for certain highly leveraged transactions, and also...more

The North Carolina General Assembly Nears Passage of Significant Legislation Affecting Business

The North Carolina General Assembly is working on significant legislation affecting the state’s business legal climate. The Legislature is one vote away from adopting Senate Bill 853 (SB 853)[1], which is intended to improve...more

Are Fairness Opinions Admissible on a Plan of Arrangement Hearing?

Differing viewpoints have recently arisen in the Ontario Superior Court of Justice (Commercial List) as to whether fairness opinions are admissible during court approval of plans of arrangement. In Champion Iron Mines Limited...more

Analysis of Recent Trends in Warranty Insurance in Private Equity M&A Transactions

Although Warranty Insurance in M&A transactions was a novelty product five to ten years ago, Warranty Insurance has now become an industry standard in Europe, largely thanks to its wide use by private equity firms who have...more

Continuity of Enterprise is Enough for Successor Parties to be Liable

Successor liability is often a concern for the acquirer when purchasing substantially all of a seller’s assets. While this risk is well known, the circumstances under which an acquirer will be found liable under the theory...more

The Fisker Case and Its Impact on Distressed M&A

As is well known, the right to credit bid is the entitlement of a secured lender to bid the amount of its outstanding claims at the sale of its collateral. If the secured lender places the winning bid, no money is exchanged...more

Identifying Further Restructuring Risks in Germany - Federal Court of Justice Clarifies Liability for Continuing the Business of...

The Financial Crisis, a difficult market situation and a tense liquidity status have led to remarkable difficulties for mid-sized businesses within the past years. Strategic and financial investors have and continue to...more

BAC CEO Pays $10 Million Plus D&O Bar To Settle NYAG Market Crisis Case

Former Bank of America CEO Kenneth Lewis agreed to pay $10 million and to be barred from serving as an officer or director of a public company for three years to settle fraud charges brought by the New York Attorney General...more

Private Equity Newsletter - Winter 2014: Recent Developments in Acquisition Finance

Several recent legal developments will likely impact acquisition finance. A recent decision of the U.S. Bankruptcy Court for the Southern District of New York examines who is an “Eligible Assignee” entitled to acquire...more

Attacking LBO Payouts as State Law Fraudulent Transfers

The United States Bankruptcy Court for the Southern District of New York (the “Court”) in Weisfelner v. Fund 1 (In Re Lyondell Chemical Co.), 2014 WL 118036 (Bankr. S.D.N.Y. Jan. 14, 2014) recently held that the safe harbor...more

"English Schemes of Arrangement Expand to Continental Europe and Beyond"

A scheme of arrangement is a tool of English corporate law that has been used in M&A and restructurings for decades. A company implementing a scheme has complete freedom to choose with which groups of shareholders and...more

KB Toys: Don’t Play with Clouded Claims

In a recent decision by the influential Third Circuit Court of Appeals, In re KB Toys Inc., 2013 U.S. App. LEXIS 23083 at *17 (3d Cir. Nov. 15, 2013), the Court decided that “the cloud on the claim” stemming from a...more

A Value Play: Chapter 11 Mergers and Acquisitions

Chapter 11 is known as a forum for reorganizing or selling a financially distressed business. Chapter 11 allows companies to reject burdensome contractual obligations, shed non-core assets and “clean up” the balance sheet by...more

Rogers Towers: Use of FDIC Special Powers: Knowledge by the FDIC or its Assignees is Irrelevant

In previous posts, we introduced the protections afforded the FDIC by the D’Oench Doctrine and 12 U.S.C. § 1823(e), which bar claims and defenses against the FDIC and its assignees by private parties based on improperly...more

Private Equity Newsletter - Fall/Winter 2012: Recent Developments in Acquisition Finance

Certain recent legal developments will likely impact acquisition finance. This article will survey some of the more notable ones. We discussed in the last newsletter the Eleventh Circuit Court of Appeals’ decision in...more

Prohibition of Indebtedness in Joint Stock Companies and Limited Liability Partnerships

This article briefly discusses the prohibition of indebtedness of shareholders, partners, Board Members, Managers and their relatives in Joint Stock Companies and Limited Liability Partnerships, under the Turkish Commercial...more

Loose Lips Sink Hostile Bids: Delaware Chancery Court Enforces Non-Disclosure Agreement with Injunctive Relief

In an eloquent account of consensual merger negotiations between Martin Marietta and Vulcan Materials, the two largest players in the domestic aggregates business, Chancellor Leo Strine of the Court of Chancery of Delaware...more

VeraSun: Claims Under “Change in Control” Agreements Subject to Cap Governing “Employment Contracts”

In a recent decision in the VeraSun bankruptcy cases, the U.S. Bankruptcy Court for the District of Delaware held that “change in control” agreements between former executives and the debtors are “employment contracts” under...more

A Moment of Privacy -- October 2011

Q: Could my privacy policy hinder the liquidation of my company's assets? A: Possibly, yes. Since defunct online toy store Toysmart's privacy policy precluded its liquidation sale of its customer list a decade ago, most...more

Inside M&A - July/August 2011

In This Issue: The Top 5 Traps in Energy M&A Transactions The Top 5 Traps in Distressed M&A Transactions The Top 5 Traps in Energy M&A Transactions by Blake H. Winburne and Matthew R. Archer Energy M&A...more

Can Second Lien Lenders Be Heard In Connection With A 363 Sale? The Answer In Boston Generating Is A Resounding Yes.

Years ago, second lien lenders adhered to the truism about children – they were seen but not heard. As our children have grown more vocal in recent years, so too have second lien lenders. A spate of recent bankruptcy cases...more

Third Circuit Holds Section 1129(b)(2)(A) of the Bankruptcy Code Does Not Provide Secured Lenders With a Legal Entitlement to...

Does a secured creditor have an absolute right to acquire its collateral, which is sold pursuant to a plan of reorganization, by credit bidding its debt? The Third Circuit Court of Appeals, in a strict constructionist...more

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