News & Analysis as of

Chapter 11 Breach of Duty

Proskauer Rose LLP

Conflict Between Delaware LLC Act and Bankruptcy Code Affects Creditor Toolbox

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As you know from our prior alerts, creditors of borrowers formed as Delaware LLCs (as opposed to corporations) lack standing under Delaware law to sue directors for breaching fiduciary duties even when, to the surprise of...more

Whitcomb Selinsky, PC

A Deep Dive into the Trustee's Appellate Journey

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Appellate law played a crucial role in shaping the outcome of this intricate legal battle between bankruptcy trustee John P. Neblett and the suppliers of a technology company. Neblett's claims of civil conspiracy, aiding and...more

Goodwin

Second Circuit Rules that Syndicated Loans Are Not “Securities” Under State and Federal Law

Goodwin on

On August 24, 2023, the U.S. Court of Appeals for the Second Circuit in Kirschner unanimously  held that notes evidencing syndicated loans do not plausibly qualify as “securities” covered by state and federal securities laws...more

Nelson Mullins Riley & Scarborough LLP

Practice Pointer: Reliance on Bankruptcy Court Appointed Examiner’s Report—Not so Fast

You represent the unsecured creditors committee in a complex Chapter 11 case, where you have reason to believe that the debtor’s officers and directors have, and continue to, engage in self-dealing and are breaching their...more

Patterson Belknap Webb & Tyler LLP

Substantial Contribution: A New Decision from the Third Circuit

It’s often hard to persuade a bankruptcy court to grant a motion for substantial contribution. Any attorney thinking about making a motion should first ask herself two questions. First, has my work benefitted both my client...more

King & Spalding

District of Oregon Limits Lender Liability Based on Alleged Control Absent a “Special Relationship”

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On June 29, 2022, the U.S. District Court for the District of Oregon dismissed a bakery’s breach-of-fiduciary duty and other lender-based claims against a strategic investor and lender. In connection with an attempted...more

Proskauer Rose LLP

Del. Bankruptcy Rulings Instruct on Creditors' Rights to Sue

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Creditors of distressed businesses are often frustrated by shareholder- controlled boards when directors pursue strategies that appear to be designed to benefit shareholders at the creditors' expense. In these...more

Proskauer Rose LLP

Suing Directors of a Troubled Business: When Form Trumps Substance

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Creditors of distressed businesses are often frustrated by shareholder-controlled boards when directors pursue strategies that appear to be designed to benefit shareholders at the creditors’ expense. In these circumstances,...more

Jones Day

Second Circuit Adopts "Control Test" for Imputation of Fraudulent Intent in Bankruptcy Avoidance Litigation

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In yet another chapter in the tortured saga of the fallout from the failed 2007 leveraged buyout ("LBO") of media giant The Tribune Co. ("Tribune") in a transaction orchestrated by real-estate mogul Sam Zell, the U.S. Court...more

Jackson Lewis P.C.

Seventh Circuit Revives State Law Claims Against Executives Acting As “Dual-Hat” Fiduciaries

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The Seventh Circuit ruled recently that ERISA does not preempt certain state law claims against directors and officers because ERISA’s text and purpose contemplate parallel corporate state-law liability against executives who...more

JAMS

[PODCAST] JAMS Neutrals Discuss the Use of Mediation in Bankruptcy Cases

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In this podcast, JAMS neutrals Judge Joan Feeney and Judge Phillip Shefferly share their thoughts on why mediation is a good tool to resolve bankruptcy disputes, provide listeners with a look into their own approaches to...more

Dorsey & Whitney LLP

2020 Recap: Corporate Restructuring Review

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Amidst a global pandemic, there were plenty of interesting bankruptcy and restructuring events and changes that occurred in 2020. We saw new Bankruptcy Code amendments go into effect (through the Small Business Reorganization...more

Jones Day

Creditors' Committee Denied Standing to Bring Derivative Claims on Behalf of LLC Debtor in Bankruptcy

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The practice of conferring "derivative standing" on official creditors' committees to assert claims on behalf of a bankruptcy estate in cases where the debtor or a bankruptcy trustee is unwilling or unable to do so is a...more

Akin Gump Strauss Hauer & Feld LLP

Top 10 Topics for Directors in 2020: Economic Downturn

Significant economic, regulatory and political uncertainties in 2020 should prompt board of directors members to evaluate, and take steps to mitigate, potential downside risks facing their businesses. Certain challenges...more

Cole Schotz

Bankruptcy Court Finds Committee Member To Have Breached Her Fiduciary Duty To Unsecured Creditors

Cole Schotz on

On November 15, 2019, the U.S. Bankruptcy Court for the Central District of California (the “Court”) issued an opinion in the case of Naylor v. Farrell (In re Farrell), Ch. 7 Case No. 14-11729-MW, Adv. No. 16-01123 (Bankr....more

Kramer Levin Naftalis & Frankel LLP

Fifth Circuit Affirms Bar Orders in Receivership, Bars Creditors From Pursuing Claims Against Settling Defendants

In a 2-1 opinion dated July 22, 2019, the Fifth Circuit held that third parties who paid a receiver to settle estate claims against them are entitled to an order barring other creditors from suing the settling third parties...more

Kramer Levin Naftalis & Frankel LLP

Creditors of a Limited Partnership or a Limited Liability Company Lack Standing to Sue Derivatively Under Certain State Laws

In Gavin/Solmonese LLC, Liquidation Trustee for the Citadel Creditors’ Grantor Trust, successor to Citadel Watford City Disposal Partners, L.P., et al. v. Citadel Energy Partners, LLC, et al., Ch. 11 Case No. 15-11323; Adv....more

Dechert LLP

U.S. Court Not Bound by Korean Law Conferring Exclusive Jurisdiction in Shareholder’s Derivative Actions

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Shareholder of a Korean corporation (“Cuzco Korea”), the sole member of a chapter 11 limited liability company debtor (“Cuzco USA” or the “Debtor”), brought an adversary proceeding against the Debtor and others, asserting...more

Skadden, Arps, Slate, Meagher & Flom LLP

Bax Limits Standing to Pursue Derivative Claims in Bankruptcy

Since the Delaware Supreme Court held in CML V, LLC v. Bax that creditors of a Delaware LLC lack standing to pursue derivative breach-of-fiduciary-duty claims, even if the LLC is insolvent or near insolvent, bankruptcy courts...more

Cole Schotz

The Fifth Circuit Considers Enforceability Of Blocking “Golden Share” Provisions

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Bankruptcy remote structures have become common in recent years to attempt to prevent a borrower from filing for Chapter 11. One such structure is commonly referred to as a “golden share.”...more

Baker Donelson

If You're Reading This, You're Too Late: Key Drivers in Rising Health Care Defaults

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Health care bankruptcy filings more than tripled in 2017 as compared to 2016 with no end in sight to the financial struggles facing owners and operators in the sector. According to Bloomberg, health care bankruptcies have...more

Jones Day

Foreign Debtors’ Forum Shopping Warranted Stay of U.S. Avoidance Litigation

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Even if a U.S. court has jurisdiction over a lawsuit involving foreign litigants, the court may conclude that a foreign court is better suited to adjudicate the dispute because either: (i) it would be more convenient, fair,...more

Patterson Belknap Webb & Tyler LLP

Bankruptcy Remoteness Going to a Court of Appeals--Fifth Circuit Issues Speedy, Focused Affirmance of the Dismissal of the...

Our February 22 post (with updates on March 19, April 17 and April 25) reported on a bankruptcy court decision dismissing a voluntary corporate Chapter 11 petition that had not been approved by a preferred stockholder of the...more

Dechert LLP

Restructuring and Insolvency Bulletin: Issue 4 - May 2018: If You Don’t Succeed in Anguilla, Should You Try Again in the US?

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Two United States Bankruptcy Judges for the Southern District of New York recently issued a joint opinion addressing common issues raised by motions to dismiss in two separate adversary proceedings – one pending before Judge...more

Spilman Thomas & Battle, PLLC

Currents - Energy Industry Insights - April 2018

Bobby D. Fentress, et al, vs. Exxon Mobil Corporation, et al - "This is an Employee Retirement Income Security Act case alleging a breach of fiduciary duties in the management of a defined contribution plan. Defendants'...more

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