2023

Contributed by Emily Kenna (PPM America) The ACIC is pleased to congratulate and welcome its newest officers and trustees. The following individuals were elected to the positions described below during the ACIC’s annual meeting. Officers for 2024: President:  Luke A. Weedon (Baker Botts LLP) Vice President 1:  Melody R. Cross (The Prudential Insurance Company of […]

Article courtesy of Amy Maloney (Morgan, Lewis & Bockius LLP) Among other recent new members, the ACIC is thrilled to have welcomed the following during the second half of 2023: Maria de la Motte (Holland & Knight LLP) Megan Ford (F&G Annuities & Life) Rita Liu (ArentFox Schiff LLP) Stephen McNamara (Bracewell LLP) Amira Privott-Yeiser […]

Recap of the 2023 Fall Annual Meeting and Education Conference Authored by Amy Hong (Greenberg Traurig) and Jeremy Fernando (Greenberg Traurig) While this year’s theme for the Fall Conference, Navigating Unchartered Waters, emphasized both the uncertainty the industry has faced over the past year and the unpredictable road ahead, for many attendees, the trip to […]

Article Courtesy of Clint Culpepper (Baker Botts) Schmidt v. Nordlicht (In re Black Elk Energy Offshore Operations, LLC), 649 B.R. 249 (Bankr. S.D. Tex. 2023)   In In re Black Elk Energy Offshore Operations, LLC, a partnership created and operated an investment fund to finance a natural gas company (the debtor) owned and operated by […]

Article courtesy of Jeff Dutson (King & Spalding) Friedman v. Wellspring Capital Management, 651 B.R. 509 (Bankr. D.S.C. 2023).  A Trustee for creditors’ liquidation trust in a Chapter 11 case brought an adversary proceeding asserting fraudulent conveyance claims against equity holders of the debtor. The proceeding sought to avoid transfer of funds in the form […]

Article courtesy of Jeff Dutson (King & Spalding) Towers Watson & Co. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 67 F.4th 648, 650 (4th Cir. 2023). A company (the “Company”) purchased directors and officers insurance liability insurance coverage (the “Policy”) from several insurance companies (collectively, the “Insurance Company”).  Following the Company’s reverse triangular […]

Article courtesy of Jeff Dutson (King & Spalding) In re Vital Pharm., 652 B.R. 392 (Bankr. S.D. Fla. 2023) Plaintiff, an energy drink manufacturer (the “Company”), was granted summary judgment and was found to own several social media accounts as a matter of law. Defendant, a former CEO (the “CEO”), claimed to own the accounts […]

Article courtesy of Kevin Braun (Morgan, Lewis & Bockius LLP), Paige Forcier (Morgan, Lewis & Bockius LLP), and Ian Tomesch (Morgan, Lewis & Bockius LLP) Novi Footwear Int’l Co. Ltd. v. Earth Opco LLC, 638 F. Supp. 3d 83 (D. Mass. 2022) Novi Footwear International Co. Ltd., a footwear manufacturer (“Seller”), entered into an agreement […]

Article courtesy of Kevin Braun (Morgan, Lewis & Bockius LLP), Paige Forcier (Morgan, Lewis & Bockius LLP), and Ian Tomesch (Morgan, Lewis & Bockius LLP) Dorsey v. Rathbun, 211 N.E.3d 73 (Mass App. Ct. 2023) In September 2007, Paul Rathbun (“Borrower”) executed a secured promissory note (“Note”) in favor of Kimberly Dorsey (“Lender”) to pay […]

Article courtesy of Kevin Braun (Morgan, Lewis & Bockius LLP), Paige Forcier (Morgan, Lewis & Bockius LLP), and Ian Tomesch (Morgan, Lewis & Bockius LLP) Trust f/b/o Dianne Rose u/a/ DTD 9/12/02 v. Levine, et al., 2023 WL 5310608 (D. Vt. August 17, 2023) In 2012, Paul Rose and Virginia Kern obtained funding from the […]

Advice and Insights from Jack Wallace, ACIC Emeritus Member Interview courtesy of Danielle Maksimow (Norton Rose Fulbright) John T. (“Jack”) Wallace has led a storied career as in house investments counsel. He was the Managing Director and Senior Counsel of John Hancock Financial Services, Inc., as well as the former Practice Group Leader, Fixed Income […]

Article courtesy of David Simonds and Edward McNeilly (Hogan Lovells)   In re A&D Property Consultants LLC v. A&S Lending LLC (In re Groves), 22-1130 (B.A.P. 9th Cir. Jun. 28, 2023)   In In re Groves, the United States Bankruptcy Appellate Panel for the Ninth Circuit (the “BAP”), affirming the bankruptcy court below, held that […]

Article courtesy of David Simonds and Edward McNeilly (Hogan Lovells)   In re Lafferty v. Off-Spec Solutions, LLC (In re Off-Spec Solutions, LLC), 23-1020 (B.A.P. 9th Cir. Jul. 6, 2023)   In In re Off-Spec Solutions, LLC, the United States Bankruptcy Appellate Panel for the Ninth Circuit (the “BAP”), affirming the bankruptcy court’s decision, held […]

Article Courtesy of David Simonds and Edward McNeilly (Hogan Lovells)   In re MacMillan, 23-30159 (Bankr. D. Ore. Jun. 29, 2023)   In In re MacMillan, the United States Bankruptcy Court for the District of Oregon (the “Bankruptcy Court”) held that, in accordance with binding Ninth Circuit precedent, debtors may not make so-called “critical vendor” […]

Article courtesy of Wendy Harlan (Unum) Among other new members who have joined during the first half of 2023, the ACIC is thrilled to welcome: Marla Berger (Kuvare Insurance Services) Jake Gawlak (Akin Gump) John Hreno (Morgan Lewis) Ben Leese (ArentFox Schiff) Rob Lewton (The Hartford) Jillian Ludwig (Allstate) Matthew Melick (State Farm) Chris Nowatarski […]

Article courtesy of Michael Robson (Greenberg Traurig, LLP) In re Buchanan, 31 F.4th 1091, 1092 (8th Cir. 2022) This case arises from a dispute between Jay Buchanan and Lori Buchanan (the “Buchanans”), sole owners of Signature Electric, LLC (“Signature”), and Lund-Ross Constructors, Inc., a general contractor (“Lund-Ross”). Lund-Ross hired Signature to do electrical work on […]

Article courtesy of Michael Robson (Greenberg Traurig, LLP) In re West, No. 21 31047 JDA, 2022 WL 1309939 (Bankr. E.D. Mich. May 2, 2022) In an adversary proceeding, the defendant, Shiawassee County in the State of Michigan, sought to dismiss the plaintiff/debtor’s four count complaint, which alleged that the state court judgment of foreclosure against […]

Article courtesy of Michael Robson (Greenberg Traurig, LLP) In re Juntoff, 636 B.R. 868 (B.A.P. 6th Cir. 2022) In a consolidated appeal arising from two separate Chapter 13 cases, the debtors objected to priority unsecured claims filed by United States on behalf of Internal Revenue Service (“IRS”) for “shared responsibility payment” (“SRP”) assessed for failure […]

Article courtesy of Maggie Parker-Yavuz (Akin Gump) and Jake Gawlak (Akin Gump) Purdue Pharma L.P. v. City of Grande Prairie (In re Pharma L.P.), 69 F.4th 45 (2d Cir. 2023) Overview: The U.S. Court of Appeals for the Second Circuit reversed the order of the U.S. District Court for the Southern District of New York […]

Article courtesy of Maggie Parker-Yavuz (Akin Gump) and Jake Gawlak (Akin Gump) TLA Claimholders Grp. v. LATAM Airlines Grp. S.A. (In re LATAM Airlines Grp. S.A.), 55 F.4th 377 (2d Cir. 2022) Overview: Unsecured creditors of Tam Linhas Aéreas S.A., a subsidiary of LATAM Airlines Group S.A., appealed to the U.S. Court of Appeals for […]

Authored by Barry Russell and Richard Hornshaw of Akin Gump Introduction The English court’s recent decision in Re AGPS BondCo PLC raises a number of important issues for fixed income investors in the debt of companies where those companies may be able to take advantage of the new restructuring plan in the UK. In particular, […]

A message from the co-chairs of the 2023 Fall Annual Meeting and Education Conference, Margaret Parker-Yavuz (Akin Gump) and Thomas Pasuit (Kuvare): On behalf of the Board of Trustees and the Education Committee, we invite you to join us at the ACIC’s 2023 Fall Investment Forum to be held at the Westin Grand Central in […]

Recap of the 2023 Spring Investment Forum Authored by: Andy Christianson (Reinhart Boerner Van Deuren) Read more here: Recap of the 2023 Spring Investment Forum

Article courtesy of Kevin P. Braun of Morgan, Lewis & Bockius LLP   District Court affirmed the Bankruptcy Court’s order awarding an oversecured creditor payment of default interest, because it did not engage in misconduct, the unsecured creditors were not unduly harmed by the payment of default interest at the 3% contractual rate and default […]

Article courtesy of Kevin P. Braun of Morgan, Lewis & Bockius LLP   Convertible notes with default interest exceeding the Massachusetts statutory maximum violated the Massachusetts Usury Act, since they were not registered with the Massachusetts Attorney General’s office; however, the court declined to void the loans as permitted under the Act, but ordered the […]

Article courtesy of Kevin P. Braun of Morgan, Lewis & Bockius LLP   Security interest did not attach to a pledged investment account when collateral description included reference to the grantor’s property “in the possession of, or subject to the control of, Lender” and the depositary bank never signed the control agreement. Berkshire Bank v. […]

Article courtesy of Jeff Dutson of King & Spalding   As South Carolina law does not recognize the continuing breach theory, the question of whether separate breaches of contract trigger the same statute of limitations depends on the parties’ contractual relationship and intent, which is to be determined through the court’s factual analysis of the […]

Article courtesy of Jeff Dutson of King & Spalding   LLC member had no duty to work at the LLC full-time or to contribute to the LLC’s debt where there was no written LLC agreement to do so under Alabama law. Sadler v. Players Recreation Grp., LLC, 2022 WL 3700373 (Ala. 2022). An Alabama limited-liability […]

Article courtesy of Jeff Dutson of King & Spalding   Lender does not qualify for equitable subrogation exception to race-notice statute. Due to lender’s failure to obtain title examination to ascertain existence of intervening liens, the equitable subrogation exception to South Carolina’s race-notice statute was inapplicable and lender did not retain its senior lien priority […]

Article courtesy of Tyler Margolis of ArentFox Schiff LLP Communications Committee The Communications Committee is responsible for communications among the College’s members and for communications between the College and the investment community at large. The Committee is prepares and publishes the College’s newsletter, Private Notes.  Among other items of interest to the College’s members, the […]

Article courtesy of Tom Bannister, Emma Butler, Lauren Pflueger, Barry Russell and Emma Simmonds (Akin)   Introduction Over recent years, a prolonged period of low interest rates, together with a competitive financing market, has resulted in greater leverage and control for private companies (and their sponsors) when it comes to negotiating terms with current and […]

Article courtesy of David Simonds and Edward McNeilly (Hogan Lovells)   In re TBH19, LLC, 2022 WL 16782946 (B.A.P. 9th Cir. Nov. 8, 2022)   In In re TBH19, the Ninth Circuit Bankruptcy Appellate Panel (“BAP”) decided whether a claim should have been disallowed under section 502(e)(1)(B) of the Bankruptcy Code as a contingent claim […]

Article courtesy of David Simonds and Edward McNeilly (Hogan Lovells)     In re Priddis, 2023 WL 2203562 (9th Cir. Feb. 24, 2023)   In February 2023, the Ninth Circuit Court of Appeals weighed in on the numerosity requirement for involuntary bankruptcy petitions. Overruling the lower courts, the Ninth Circuit held that an involuntary petition […]

Article Courtesy of David Simonds and Edward McNeilly (Hogan Lovells)   In re Mariner Health Cent., Inc, 2023 WL 187175 (Bankr. N.D. Cal. Jan. 12, 2023)   In In re Mariner Health Central, the United States Bankruptcy Court for the Northern District of California (the “Bankruptcy Court”) denied the debtors’ motion to extend the automatic […]

Article courtesy of Clint Culpepper of Baker Botts Wilson v. Cap. Partners Fin. Grp. USA, Inc., No. 05-20-00704-CV, 2022 WL 2437595, 2022 Tex. App. LEXIS 4600 (Tex. App.—Dallas July 5, 2022) (unpublished opinion)   In Wilson v. Cap. Partners Fin. Grp. USA, Inc., No. 05-20-00704-CV, 2022 WL 2437595, 2022 Tex. App. LEXIS 4600 (Tex. App.—Dallas […]

Article courtesy of Chiraag Kumar (MetLife) The ACIC is thrilled to have welcomed the following new members during the second half of 2022: Kaileigh Fagan Hobson (King & Spalding) Chris Parrott (Akin Gump) Bret Strzelczyk (Greenberg Traurig) Hailey Osland (Lincoln Financial) Jamie Kocis (Kramer Levin Naftalis & Frankel) To learn more about these esteemed new […]

Article courtesy of Michael Robson (Greenberg Traurig, LLP) In re Franklin, No. 21 20657 DOB, 2022 WL 903735 (Bankr. E.D. Mich. Mar. 28, 2022) In a dispute between Jermaine Franklin Jr., the debtor, and Mark Haak, Mr. Franklin looked to have the court determine if he must continue performing the tasks required under a personal […]

Article courtesy of Michael Robson (Greenberg Traurig, LLP) Peters Broadcast Engineering, Inc. v. 24 Cap., LLC, 40 F.4th 432 (6th Cir. 2022) In a dispute between Peters Broadcast Engineering, Inc. (“Peters Broadcast”), a broadcasting company, alleging RICO violations against 24 Capital, LLC (“24 Capital”) and its operations manager, the United States Court of Appeals, Sixth […]

Article courtesy of Michael Robson (Greenberg Traurig, LLP) FishDish, LLC v. VeroBlue Farms USA, Inc., No. 19 CV 3026 CJW KEM, 2022 WL 1093271 (N.D. Iowa Apr. 12, 2022) In a dispute between FishDish, LLC (“FishDish”) and Alder Aqua, Ltd. (“Alder Aqua”), VeroBlue Farms USA, Inc. (“VeroBlue”), and Broadmoor Financial L.P. (collectively “appellees”) on appeal […]

Article courtesy of Maggie Parker-Yavuz (Akin Gump) and Jake Gawlak (Akin Gump) Halperin v. Morgan Stanley Investment Mgmt. (In re Tops Holding II Corp.), Docket Nos. 18-22279, 20-08950, 2022 Bankr. LEXIS 2899 (Bankr. S.D.N.Y. Oct. 12, 2022) Overview: Litigation trustee for unsecured creditors of Tops Holding II Corporation in its chapter 11 bankruptcy case brought […]

Article courtesy of Maggie Parker-Yavuz (Akin Gump) and Jake Gawlak (Akin Gump) Bayside Cap. Inc. v. TPC Group Inc. (In re TPC Group Inc.), Docket Nos. 22-10493 (CTG), 22-50372 (CTG) (Bankr. D. Del. July 6, 2022) Overview: Minority holders of notes issued by chapter 11 debtor TPC Group Inc. under a 2019 indenture filed an […]

Article courtesy of Maggie Parker-Yavuz (Akin Gump) and Jake Gawlak (Akin Gump) Citibank, N.A. v. Brigade Capital Mgmt., LP, 49 F.4th 42 (2d Cir. 2022) Overview: The U.S. Court of Appeals for the Second Circuit considered whether, under New York law, lenders to Revlon were entitled to keep an erroneous payment of approximately $500 million […]

A message from the co-chairs of the 2023 Spring Investment Forum, Manny Rodriguez (Avila Law) and Brendan Kelly (New York Life): On behalf of the Board of Trustees and the Education Committee, we invite you to join us at the ACIC’s 2023 Spring Investment Forum to be held at the Four Seasons Hotel in Chicago […]