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The Delaware Bankruptcy Insider is a premier blog designed to bring its readers a comprehensive analysis of the latest Delaware corporate bankruptcy news and rulings.  Brought to you by Ashby & Geddes, P.A.

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“Thread-bare” Complaint Alleging Collective and Non-Specific Breaches of Fiduciary Duty Dismissed Against Individual Officers and Directors

Stanziale v. Heico Holdings, Inc. (In re Conex Holdings, LLC), Adv. No. 13-50941 (CSS), 2014 WL 3883712 (Bankr. D. Del. Aug. 8, 2014)

In this short Memorandum Opinion, the Bankruptcy Court dismissed a chapter 7 trustee’s claims for breaches of fiduciary duties against certain officers and directors under Texas common and statutory law.  In doing so, Judge Sontchi held that the trustee failed to plead facts with any specificity as to how each officer and director breached his duties.  However, the Court allowed the trustee leave to amend his complaint within 30 days to allege… Read More

In Determining Whether a Claim is Core, the Focus Should Be on the Nature of the Dispute, Not Its Significance (Economic or Otherwise) to the Debtors and Their Estates

Longview Power, LLC v. First Am. Title Ins. Co. (In re Longview Power, LLC), Adv. No. 14-50369 (BLS), Memorandum Order, Adv. Docket No. 57 (Bankr. D. Del. Aug. 12, 2014)

In the Longview Power bankruptcy proceedings, the debtors (the “Debtors”) have proposed a chapter 11 plan of reorganization that contemplates satisfying, if ultimately allowed, certain mechanics’ lien claims asserted in the aggregate amount of over $335 million from the proceeds of a title insurance policy (the “Title Insurance Policy”) issued by First American Title Insurance Co. (“First American”).  The policy was issued in the amount… Read More

A New Look at Section 547(c)(4): Is “Paid Subsequent New Value” Non-Exclusive of Other Defenses?

Miller v. JNJ Logistics LLC (In re Proliance Int’l, Inc.), No. 11-52514 (CSS), 2014 WL 3956485 (Bankr. D. Del. Aug 14, 2014)

Following precedent, Judge Christopher S. Sontchi held in this Opinion that “paid subsequent new value” (“Paid SNV”) may offset a creditor’s preference exposure under section 547(c)(4) of the Bankruptcy Code.  However, in a potentially significant departure from the Court’s earlier decision in Pillowtex, Judge Sontchi ruled that, as long a trustee states a prima facie claim for an “otherwise avoidable” transfer under section 547(b),  the amount of a creditor’s Paid SNV defense may… Read More

Post-Sale Data May Be Useful to Confirm the Reasonableness of Pre-Sale Projections and Valuations But It is of No Relevance In a Breach of Fiduciary Duty Action

Miller v. Am. Capital, Ltd. (In re NewStarcom Holdings, Inc.), Adv. No. 10-50063 (CSS), 2014 WL 3865822 (Bankr. D. Del. Aug. 6, 2014)

In this breach of fiduciary duty action arising from the prepetition “fire” sale of the debtors’ subsidiary (“Old Matco”) to insiders, the chapter 7 trustee sought to compel defendants to produce post-sale financial information of the sold-subsidiary so that the reasonableness of any valuation performed as of the sale date could be determined.  The defendants objected to the production on the grounds that the request was, among other things, irrelevant to the fiduciary claims, arguing… Read More

The Insider’s Scoop: May Investment Bankers be Retained by Debtors as Independent Contractors? “No” Says the Delaware Bankruptcy Court

In re MacKeyser Holdings, LLC, No. 14-11550 (CSS) (Bankr. D. Del. Aug. 7, 2014)

In the recently filed chapter 11 proceedings of MacKeyser Holdings, LLC and its affiliated debtors (“Debtors”), the Debtors sought to retain Hammond Hanlon Camp (“H2C”) as their exclusive investment banker under sections 327 and 328 of the Bankruptcy Code.  H2C’s proposed engagement agreement included a provision disclaiming its role as a fiduciary to the Debtors.  More specifically, it provided that “H2C shall act as an independent contractor under this Agreement and not in any other capacity including any fiduciary capacity.”

H2C’s carve-out… Read More

Claims Arising From Purchaser Wrongdoing Following Entry of Sale Order But Prior to Closing Barred and Enjoined by Section 363(f)

In re NE Opco, Inc., No. 13-11483 (CSS), 2014 WL 3884217 (Bankr. D. Del. Aug. 8, 2014)

In the chapter 11 proceedings of NE Opco, Inc. and its affiliated debtors (the “Debtors”), the Honorable Christopher J. Sontchi was presented with a unique set of circumstances leading to the following question—whether pre-closing claims against a purchaser, related to the sale and arising from conduct occurring after the entry of a sale order, should be barred and enjoined by the section 363(f) finding in the sale order.  The Court held that they should.

The claimant, Mr. Torres (“Torres”), had… Read More

Discovery Regarding a Debtor’s Valuation and Solvency Held Relevant to Makewhole Dispute

In the CSC Trust Co. adversary proceeding pending in connection with the Energy Future Holdings Corp. bankruptcy proceedings, an indenture trustee for certain senior secured notes sought a declaration from the Court that certain debtors (the “EFIH Debtors”) are obligated to pay a redemption premium in connection with a proposed refinancing of the notes.  In his Opinion, Judge Sontchi held discoverable information regarding the EFIH Debtor’s valuation and solvency, finding that such information is relevant to the amount that may need to be paid should an enforceable makewhole provision be found.  Despite the foregoing, however,… Read More