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Showing posts in Corporate Law

A Third Circuit Analysis of Fiduciary Duties in the Face of Bankruptcy

In re Ultimate Escapes Holdings, LLC, 682 Fed. Appx. 125 (2017)

In re Ultimate Escapes Holdings, LLC, No. 12-50849 (BLS), 2015 WL 1590132 (Bankr. D. Del. Feb. 5, 2015)

In affirming the decisions of the courts below, the Third Circuit in its Opinion of In re Ultimate Escapes Holdings, LLC not only provides a refresher on Delaware’s entire fairness and business judgment standards; it also sends a comforting signal to officers and directors faced with difficult decisions when a company is in financial distress and on the verge of bankruptcy.

As the merger negotiations continued, UE’s financial situation deteriorated.  An… Read More

Trustee’s Claims Against Insiders For Their Action (or Inaction) in the Face of Insolvency Survives Motion to Dismiss Despite Exculpation, Business Judgement, and Deeping Insolvency Defenses

Stanziale v. Versa Capital Mgmt., LLC (In re Simplexity, LLC), Case No. 14-10569 (KG), 2017 WL 65069 (Bankr. D. Del. Jan. 5, 2017)

According to the Chapter 7 Trustee of Simplexity, LLC (“Simplexity” and together with its affiliated debtors, the “Debtors”), numerous insiders of Simplexity (the “Defendants”) breached their fiduciary duties by refusing to seek bankruptcy protection for Simplexity when faced with actions by Simplexity’s lender, including the threat to sweep all available funds, thereby failing to preserve the value of the Debtors and exposing Simplexity to employment related claims.  In this Memorandum Opinion, the Delaware Bankruptcy Court… Read More

UPDATE – Significant Changes to DGCL Enacted

After much debate and criticism, proposed legislation making significant changes to the Delaware General Corporation Law (the “DGCL”) – previously discussed here – has been signed by Governor Markell after being passed by the General Assembly, and is set to take effect on August 1, 2015.  The amendments, which were proposed in Senate Bill 75, are notable in two ways:  (a) they prohibit Delaware stock corporations from including bylaw provisions shifting legal fees and costs to stockholder-plaintiffs in the event of unsuccessful litigation relating to an “internal corporate claim”; and (b) they permit Delaware corporations to… Read More

Automatic Stay Held Not Applicable to Shareholder’s Right to Compel Shareholder Meeting

In re SS Body Armor I, Inc., No. 10-11255 (CSS), 2015 WL 1523775 (Bankr. D. Del. Apr. 1, 2015)

In this Opinion, Delaware Bankruptcy Court Judge Christopher S. Sontchi adopted previous holdings of the Court of Appeals for the Second Circuit and the Delaware District Court to rule that the right of a shareholder to compel a shareholder meeting for the purpose of electing a new board of directors continues during a bankruptcy proceeding unimpaired by the automatic stay.  See Manville Corp. v. Equity Sec. Holders Comm. (In re Johns-Manville Corp.), 801 F.2d 60 (2d Cir. 1986); Official Bondholder Comm…. Read More

Court Addresses Standards for Insolvency, Piercing the Corporate Veil Under Delaware Law, Avoiding Alleged Fraudulent Transfers, and More

Burtch v. Opus, LLC (In re Opus East, LLC), Adv. Proc. No. 11-52423 (MFW), 2015 WL 1404959 (Bankr. D. Del. March 23, 2015)

In this Opinion, Judge Mary F. Walrath addressed 67 counts brought by a chapter 7 trustee (the “Trustee”) against former fiduciaries of the debtor and related business entities.  The Trustee alleged theories of piercing the corporate veil, breach of fiduciary duty, aiding and abetting breach of fiduciary duty, successor liability, avoidance of fraudulent and preferential transfers, unjust enrichment, disallowance and equitable subordination of claims, revocation of certificate of dissolution, imposition of constructive trust, tortious interference… Read More

Significant Fee-Shifting and Forum Selection Amendments Proposed to the DGCL

The Corporation Law Council, a committee of the Delaware State Bar Association that drafts recommendations for amendments to the DGCL on an annual basis, has proposed text of a bill to amend the Delaware General Corporation Law (the “DGCL”) in considerable ways.  The proposal—which is, in large part, a reaction to recent decisions of the Delaware Supreme Court and Delaware Court of Chancery—seeks to limit the impact of fee-shifting provisions that arise in the event of unsuccessful stockholder derivative suits, as well as permit Delaware corporations to include forum selection provisions in their organizational documents with certain limitations.

First,… Read More

Tidbits From The Delaware Bankruptcy Court On In Pari Delicto and Equitable Subordination

Lightsway Litig. Servs., LLC v. Yung (In re Tropicana Enter., LLC), Adv. No. 10-50289 (KJC), 2014 WL 6704445 (Bankr. D. Del. Nov. 25, 2014)

In this Memorandum, the Honorable Kevin J. Carey disposes of certain claims against William J. Yung III (“Yung”), the former director and CEO of Tropicana Entertainment LLC (with its affiliated entities, the “Debtors”) and certain entities controlled by Yung, Wimar Tahoe Corporation (“Wimar”), the parent corporation of the Debtors, and Columbia Sussex Corporation (“Columbia” and together with Wimar and Yung, the “Defendants”).  Notably, the Court discusses—albeit briefly—two developing legal concepts in the Third Circuit… Read More

“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

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

Derivative Standing to Pursue Recharacterization, Equitable Subordination, and Breach of Fiduciary Duty Claims on behalf of Debtors Optim Energy, LLC Denied by Bankruptcy Court

In re Optim Energy, LLC, No. 14-10262 (BLS), 2014 WL 1924908 (Bankr. D. Del. May 13, 2014)

On May 13, 2014, the Honorable Brendan L. Shannon issued an Opinion denying an unsecured creditor’s request for derivative standing to pursue claims on behalf of debtor Optim Energy, LLC (“Optim Energy”) and its affiliated debtors (collectively, the “Debtors”) for recharacterization, equitable subordination, and breach of fiduciary duties against direct and indirect non-debtor owners, ECJV Holdings, LLC (“ECJV”) and Cascade Investments, L.L.C. (“Cascade”).  Walnut Creek Mining Company (“Walnut Creek”), the Debtors’ largest non-insider general unsecured creditor, alleged that the… Read More