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|Pontiac General Employees Retirement System v. Healthways, Inc.: Delaware Chancery Court Declines to Dismiss Fiduciary Duty Claims Against Directors and Aiding and Abetting Claims Against Lender in Connection with Dead Hand Change of Control Provision in Credit Agreement|
Francis J. Aquila, Audra D. Cohen, H. Rodgin Cohen, Mitchell S. Eitel, John E. Estes; Sullivan & Cromwell LLP;
November 14, 2014, previously published on October 27, 2014In a bench ruling issued on October 14, 2014, the Delaware Court of Chancery (VC Laster) declined to dismiss fiduciary duty claims against the directors of Healthways, Inc. (“Healthways”) and an aiding and abetting claim against SunTrust Bank (“SunTrust”), the lender...
|The Rise of a Regulator - New York’s Department of Financial Services Takes Matters Into Its Own Hands|
Adam S. Kaufmann, Arthur D. Middlemiss, Hillary Rosenberg, A. Katherine Toomey; Lewis Baach PLLC;
November 12, 2014, previously published on October 2014New York’s state-level financial regulator - the Department of Financial Services (“DFS”) - regulates all banks and insurance companies located in New York. It has always been a robust regulator, but until lately, it has operated largely in the background, particularly in high...
|Usury in Florida: Penalties|
Scott Jonathan Kennelly, Janet C. (Jacy) Owens; Rogers Towers, P.A.;
November 12, 2014, previously published on October 7, 2014There are two “tiers” of penalties for violation of the Florida usury statutes, one civil and the other criminal, and both are severe. Civil penalties usually involve forfeiture of the entire interest charged (or contracted to be charged), such that only the principal balance may be...
|Complying with the Florida Consumer Collection Practice Act|
Adam Keith Butman Brandon; Rogers Towers, P.A.;
November 12, 2014, previously published on October 16, 2014In addition to ensuring compliance with the federal Fair Debt Collection Practices Act (FDCPA), lenders should take precautions to limit its exposure to claims under the Florida Consumer Collection Practices Act (FCCPA).
|Recent Decision Creates Split in Middle District Regarding Whether 11 U.S.C. § 707(b)(2) Applies to Cases Converted to Chapter 7|
Armando Nozzolillo, Michael S. Waskiewicz; Rogers Towers, P.A.;
November 12, 2014, previously published on October 14, 2014In the last 2 years, three judges of the Middle District of Florida (Judges Funk, Delano and Williamson) have each issued opinions finding 11 U.S.C. § 707(b)(2) inapplicable in cases converted from a Chapter 13 to a Chapter 7. These Courts have based their findings on the “plain...
|A Bank Divided: The “Separate Entity” Rule Lives|
H. Bradford Glassman, Bruce R. Grace, A. Katherine Toomey; Lewis Baach PLLC;
November 12, 2014, previously published on October 2014New York’s Court of Appeals issued a decision today in Motorola Credit Corporation v. Standard Chartered Bank, resolving, at least for the time being, whether foreign branches of a bank are entities separate from that bank’s US branches for the purpose of serving and enforcing...
|More Ammunition in Defending Against Preference Claims|
Jayson B. Ruff; McDonald Hopkins LLC;
November 11, 2014, previously published on October 30, 201411 U.S.C. § 547 gives a bankruptcy trustee or debtor in possession strong powers in avoiding transfers made by the bankrupt debtor within the 90-day period prior to the debtor's bankruptcy filing. I am sure there are many creditors who have had the unpleasant experience of receiving a letter...
|Clawback Suit Targets International Investors|
Michelle M. Arbitrio; Wilson Elser Moskowitz Edelman & Dicker LLP;
November 10, 2014, previously published on June 17, 2014In 2008, a few months before the $65 billion Madoff Ponzi scheme fell apart, the $3.65 billion Petters Ponzi scheme made headlines. Tom Petters told investors that they were financing the purchase and sale of consumer electronic goods when no goods existed. Rather, Petters used funds from new...
|New NBU “Anti-crisis” Measures|
Natalia Selyakova; Dentons Canada LLP;
November 5, 2014, previously published on October 6, 2014Resolution No. 626 of the Board of the National Bank of Ukraine dated 3 October 2014, which entered into force as of 4 October 2014, has introduced changes to the Resolution No. 540 of the Board of the National Bank of Ukraine dated 29 August 2014, concerning additional “anti-crisis...
|Two Kansas Coops Establish Strategic Alliance|
Sutherland Asbill Brennan LLP;
November 4, 2014, previously published on October 24, 2014Kaw Valley Electric Cooperative and Leavenworth-Jefferson Electric Cooperative, both located in northeast Kansas, have established a strategic alliance in order to control costs while ensuring affordable and reliable service. A coop representative said that a consolidation of the coops could...