2020

By: Danielle Maksimow and Hansik Ha, Norton Rose Fulbright Canada LLP Many Canadian businesses who are debtors of institutional investors are facing economic pressures and liquidity concerns during the COVID-19 pandemic. In response, the Government of Canada is providing various liquidity support to qualifying Canadian businesses to alleviate this concern. Businesses can qualify for various […]

By: Bryan Cho, MetLife   Arinze N. Onugha is a senior associate in the New York office of Sullivan & Worcester. He represents institutional investors, including regulated funds of funds, family offices and pension plans, making alternative investments in domestic and offshore special situations, growth, buy-out, venture capital, real estate and other private investment funds and […]

President’s Message By: Anthony D. Yager, Chapman and Cutler LLP What an unusual year 2020 has been so far!  Like me, I assume many of you have been relegated to working from home during quarantine on a makeshift desk, hoping to resume our normal lives soon. Fortunately, the weather has finally been nice enough here […]

Current COVID-19 Topics in the Power Industry By: Alex Smorczewski, Amy Maloney and Casey August Morgan, Lewis & Bockius LLP During this unprecedented time of global pandemic, the power industry has found itself under extraordinary pressures and been forced to confront many issues of first impression.  Following is a brief treatment of several topics that […]

A lot of what the TPMC has been discussing over the last few weeks was addressed in the ACIC CLE presentation on April 16, 2020 entitled,“The Practical Impacts of COVID-19 on Private Placement Transactions”, by Colin Pennycooke (Principal Insurance), Stacey Pike (Chapman and Cutler LLP), Christopher A. Lawrence (Akin Gump Strauss Hauer & Feld LLP), […]

Bankruptcy Court has Discretion to Refuse to Enforce Compelled Arbitration Provision in Proceedings Seeking Enforcement of Discharge Injunction In Matter of Henry, 944 F.3d 587 (5th Cir. 2019), the 5th Circuit Court of Appeals was called upon to determine whether the bankruptcy court erred in refusing to enforce an arbitration agreement and to compel arbitration […]

Southern Inyo Healthcare District v. Optum Bank, Inc. (In re Southern Inyo Healthcare District), 2020 WL 634295, Adv. No. 17-01077-A (Bankr. E.D. Cal. Feb. 10, 2020) Overview A debtor healthcare district objected to a proof of claim filed by a bank and sought a declaratory judgment that the bank’s security interests were invalid because the […]

Lynn Schoenmann, Chapter 7 Trustee v. Carmel Financing, LLC (In re Mayacamas Holdings LLC), 608 B.R. 522 (Bankr. N.D. Cal. 2019) Overview: Granting in part and denying in part a motion to dismiss an adversary proceeding brought by a chapter 7 trustee, the United States Bankruptcy Court for the Northern District of California held that […]

Fed. Home Loan Bank of Seattle v. Credit Suisse Sec. (USA), LLC, 194 Wn.2d 253, 449 P.3d 1019 (Wash. 2019) Overview In a state securities fraud case arising out of investment losses caused by losses on subprime residential mortgage-backed securities, the Washington State Supreme Court held that a plaintiff suing for misrepresentation in a private […]

In re 3MB, LLC, Case No. 18-14663-B-11, 2019 WL 6701420 (Bankr. E.D. Cal. Dec. 5, 2019). Overview: The United States Bankruptcy Court for the Eastern District of California (the “Bankruptcy Court”) held that a provision in a promissory note, governed by California law, that provided for default interest at the rate of 4% per annum […]

Court of Appeals Affirms Summary Judgment Motion in Favor of Bank on Fraud Claim In Magna Equities II, L.L.C. et al. v. Heartland Bank, 787 Fed.Appx 223 (5th Cir. 2019), the 5th Circuit Court of Appeals affirmed the district court’s grant of summary judgment in favor of Heartland Bank (“Heartland”) on an action claiming, among […]

Republished with permission from Proskauer. Please click here for the original article. — Postpetition Interest on Unsecured Claims: Lessons for Distressed Debt Investors In Light of the PG&E Decision Key Takeaways: Unsecured claimholders of a solvent debtor are entitled to postpetition interest on their claims, although the solvent debtor exception has been questioned in other […]

The National Association of Insurance Commissioners (the “NAIC”) recently approved new rules with respect to ground lease financing transactions (each a “GLFT”).  GLFTs are generally those that have the following characteristics: (i)        a long term ground lease (typically 99 years); (ii)       one or more subtenants in an existing or to be construction building; (iii)      both […]

In re Palm Avenue Partners, LLC, No. 8:12-bk-09808-MGW, 2019 WL 6971160 (Bankr. M.D. Fla. December 17, 2019). Tom Leiter solicited $2.5 million in investments to develop property through Palm Avenue Partners, a company he and his son managed. He (through Beacon Homes, which he solely owned) spent $300,000.00 to acquire the contractual rights to buy […]

TMX Finance, LLC v. Goldsmith, 352 Ga. App. 190 (Ct. Ap. Ga. 2019). Ousted owners of ICOT Holdings, LLC and ICOT Hearing (collectively, “ICOT”) filed a direct action against Young, a guarantor and former co-member of ICOT, in addition to his web of companies, alleging breach of a limited liability company’s operating agreement, breach of […]

SE Prop. Holdings, LLC v. Unified Recovery Grp., LLC, 410 F. Supp. 3d 775 (E.D. La. 2019). A Louisiana parish contracted with Unified Recovery Group, LLC (“URG”) to remove debris following Hurricane Katrina (the “Katrina Contract”) and Hurricane Isaac (the “Isaac Contract”).  Thereafter, URG entered into a security agreement with SE Property Holdings, LLC (“SEPH”), […]

Bethesda Road Partners, LLC v. Strachan, 832 S.E.2d 503 (N.C. Ct. App. 2019). A real estate venture (the “Borrower”) executed a promissory note (the “Note”) to a bank (the “Bank”) as part of a project. The Bank required each of the members of the LLC to execute personal guaranties. The project failed, the Note matured, […]

In re Tara Retail Group, LLC, 607 B.R. 839 (Bankr. Dist. W. Va. 2019) In September 2013, Tara Retail Group, LLC (“Debtor”) purchased a multi-tenant commercial property known as The Crossings Mall. In conjunction with the purchase of this property, the Debtor entered into a Loan Agreement with UBS Real Estate Securities, Inc. The Debtor […]

Membership Committee The primary responsibility of the Membership Committee is to consider applications for ACIC membership and to recommend those applicants meeting the membership criteria of the College to the Board of Trustees for a membership vote.  In discharging this responsibility, the committee considers the totality of a candidate’s responses in his/her application, with particular […]

Auctus Fund, LLC v. Sunstock, Inc., 405 F. Supp. 3d 218 (D. Mass. 2019) Sunstock Inc., (the “Borrower”) issued convertible promissory notes to Auctus Fund, LLC  (“Auctus”) and EMA Financial, LLC (“EMA”, and each a “Lender”, and collectively the “Lenders”) in 2017.  Both Lenders had a provision in their respective promissory notes where in the […]

Metcalf v. Fitzgerald, 333 Conn. 1, 214 A.3d 361 (2019) Jonathan Metcalf (the “Debtor”) filed a chapter 7 bankruptcy petition for his business and later a petition individually.  One of his creditors, Ion Bank (the “Creditor”), objected to the discharge of any the Debtor’s obligations in bankruptcy court and initiated an adversary proceeding against the […]

Bank of America, N.A. v. New England Quality Service, Inc., 790 F. App’x 314 (2d Cir. 2019) In August of 2012, New England Quality Service, Inc. and affiliates (the “Borrowers”) entered into a loan agreement with Bank of America, N.A. (the “Lender”).  Over the next few years, the Borrowers expanded their relationship with the Lender, […]

On behalf of the Board of Trustees and the Education Committee, we invite you to join us April 16-17 at the Four Seasons in Chicago for the ACIC’s 2020 Spring Forum. Our musical and legal journey will take us across generations as we explore a variety of issues in the private placement world.  We have […]

Koss Corp. v. Park Bank, No. 2016AP636, 2019 WL 350386, 385 Wis.2d 261 (Wis. 01/29/19) In an action that created a new standard of faith in Wisconsin under its Uniform Fiduciaries Act (“UFA”), the Supreme Court of Wisconsin (the “Court”) ruled in favor a bank involving the unauthorized disbursement of funds due to fraudulent actions. The […]

KSA Enterprises, Inc. v. BB&T, No. 17‑6132, 2019 WL 181665, 761 Fed.Appx. 456 (6th Cir. 01/14/19) In an action regarding an appeal of a five‑count claim alleging (1) breach of contract, (2) fraudulent misrepresentation, (3) negligent misrepresentation, (4) fraudulent inducement, and (5) unjust enrichment, the 6th U.S. Circuit Court of Appeals (the “Court”) affirmed the Western District of Kentucky’s decision in favor […]

Jet Midwest Int’l v. Jet Midwest Group, No. 18‑1311, 932 F.3d 1102 (8th Cir. 08/02/19) In a dispute involving the recovery of attorney fees between business entities from diverse jurisdictions involved in cross‑border transactions, the 8th U.S. Circuit Court (the “Court”) took up a case reminiscent of a law school civil procedure class. Jet Midwest Group […]

In re I80 Equip., LLC, 2019 WL 4296751, 67 BCD 177 (7th Cir. 2019) In a matter of first impression in the 7th U.S. Circuit Court of Appeals (the “Court”) deciding whether a Chapter 7 trustee could avoid a creditor’s lien on grounds of an insufficient financing statement, the Court reversed and remanded the bankruptcy court’s […]

Contrarian Funds, LLC v. Woodbridge Group of Companies, LLC (In re Woodbridge Group of Companies, LLC), 606 B.R. 201 (D. Del. 2019) Overview: A distressed debt investor purchased promissory notes from the original noteholders in violation of anti-assignment provisions in the notes and the related loan agreements.  The investor argued that section 9-408 of the […]

Oxford University Bank v. Lansuppe Feeder, LLC, 933 F.3d 99 (2d Cir. 2019) Overview: Holders of junior notes sued for rescission of the indenture under which the notes were issued on the grounds that they were entitled to rescission under Section 47(b) of the Investment Company Act (the “Act“) because the issuer violated the Act […]

Andrew Christianson is a shareholder in Reinhart Boerner Van Deuren’s Employee Benefits, Institutional Investor Services, Corporate and Securities practices.  Andy advises domestic and non-U.S. governmental pension plans, insurance companies and other institutional investors in structuring and negotiating private equity, hedge fund and alternative investments.  Andy also represents public and closely held companies on a range […]

Protecting Tax in Insolvency Introduction The current priority of debts in an English insolvency are determined by reference to the Insolvency Act 1986, which provides for preferential status in respect of certain debts including, for example, employee remuneration and occupational pension schemes.  This status ensures that these preferred debts are paid after creditors holding fixed […]

New York Superintendent of Financial Services Linda A. Lacewell has appointed, current ACIC fellow and former ACIC Trustee, My Chi To, as executive deputy superintendent of the Insurance Division at the Department of Financial Services (DFS), which regulates more than 1,400 insurance companies with assets of $4.7 trillion.  Click Here to learn more.

Syncreon: The English Patient On 1 October 2019, the landmark cross-border restructuring of the Syncreon group completed.  Pursuant to the restructuring, the Syncreon group’s funded debt was reduced by approximately U.S. $625 million and the Syncreon group was provided with approximately U.S. $250 million of new financing.  The restructuring of the Syncreon group is widely […]

To Our ACIC Fellows and Friends: Please allow us a few moments to introduce you to our newly designed ACIC Website! The members of the website committee, along with our ACIC administrative office, have been hard at work for the past year on the new site, and we are excited for you all to see […]

Wei v Li, 2019 BCCA 114 Summary In Canada, s. 347 of the Criminal Code of Canada (the Criminal Code) precludes interest rates in excess of 60% per annum. In Wei v Li., the defendants defaulted in the re-payment of their loans to the plaintiff.  The plaintiff obtained a judgment from a Chinese court after […]