Complex Bankruptcy and Insolvency Litigation: Innovative Strategies to Recover, Protect, Preserve Company Assets
Maneuvering Through the Window Between the Business Judgment Rule and Intentional Dishonest Acts
Recording of a 90-minute CLE video webinar with Q&A
This CLE course will review director and officer protection statutes across key jurisdictions and show counsel how to maneuver through the window between the business judgment rule and intentional dishonest acts to ensure access to directors and officers liability insurance policies if duties of care (e.g., gross negligence and recklessness), loyalty (e.g., self-dealing and conflicts of interest), and more recently, supervision, have been violated. The program will also discuss how to spot negligent and unlawful opinions, services, and transactions by professionals.
Outline
- Investigation and identification of culpable parties
- Preserving and reviewing key electronic and other evidence
- Importance of early thorough witness interviews
- Finding a cooperative inside witness
- Impact of key bankruptcy documents on recovery
- How to maximize value of potential litigation claims to calm creditors
- Ways to work with creditor/investors to bring slightly overlapping claims
- Anticipating and neutralizing typical defenses
- Common key defenses
- Threading the needle to avoid pitfalls
- Preserving insurance coverage
Benefits
The panel will address these and other critical issues:
- How can trustees or creditors avoid triggering insurance exclusions and stay within coverage?
- How do consensual and nonconsensual releases affect strategy?
- When are nonconsensual releases proper and likely to be approved?
- What is the current law regarding standing to bring avoidance actions under Bankruptcy Code section 548 and state law?
- Who has standing to bring breach of fiduciary duty claims?
- What are the tell-tale signs of ignoring wrongdoing in ordinary opinions and scope of work descriptions?
Faculty
Michael Burkart
Bankruptcy Plan Administrator
Heller Ehrman
After more than 20 years of experience in commercial banking, having served as a President & CEO of four... | Read More
After more than 20 years of experience in commercial banking, having served as a President & CEO of four publicly owned commercial banks in California, Mr. Burkart earned a reputation as a problem solver and turnaround manager. You may recognize his name as the court appointed Chapter 11 Plan Administrator for the Bankruptcy Estate of Heller Ehrman LLP, filed in San Francisco. This was a 112-year old international law firm, with 750 attorneys, that filed its Chapter 11 Voluntary Petition on December 28, 2008. Despite a case fraught with litigation and other challenges, thus far, he has distributed a 100% dividend to all unsecured priority creditors and six interim distributions totaling 64% to general unsecured creditors.
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Christopher D. Sullivan
Partner
Diamond McCarthy
Mr. Sullivan has successfully represented a wide variety of clients in major litigation, including both plaintiffs in... | Read More
Mr. Sullivan has successfully represented a wide variety of clients in major litigation, including both plaintiffs in business litigation and large corporate defendants. He has represented bankruptcy estates and unsecured creditors’ committees, major corporations (American Honda, American Express, and Southland, the 7-11 franchisor), real estate developers, a financial institution, and a famous underwater photographer. Mr. Sullivan represents individuals and smaller businesses against large corporations.
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Thomas A. Willoughby
Partner
Felderstein Fitzgerald Willoughby Pascuzzi & Rios
Mr. Willoughby's practice focuses on difficult insolvency related cases. Tom has been lead counsel to businesses in... | Read More
Mr. Willoughby's practice focuses on difficult insolvency related cases. Tom has been lead counsel to businesses in financial distress, trustees, Official Committees, financial institutions, and other creditors in a wide array of cases both in and out of bankruptcy court.
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