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Commercial Fraud Committee


Post date: Tuesday, August 06, 2019

The General Corporation Law of Delaware (DGCL) provides a right of action against corporate directors who declare a dividend while the corporation is insolvent. Such conduct may also give rise to claims for fraudulent transfer or breach of fiduciary duty, but unlawful dividend claims have several advantages.

Michael D. Napoli
Post date: Tuesday, August 06, 2019

The Fifth Circuit recently certified an important question under the Uniform Fraudulent Transfer Act (UFTA) to the Texas Supreme Court. At issue is the futility exception to the good-faith defense provided by § 8(a) of UFTA.

Post date: Friday, January 11, 2019

Lees Inns of America (LIA) was a public company that built and operated hotels. Lester Lee (Lester) and his brother William each owned 25 percent of LIA. In 1994, LIA went private and Lester became the majority shareholder and chairman of the board. The balance of shares were held by a trust (the Trust) created by William with his two sons as co-trustees.

Post date: Friday, January 11, 2019

        An insurance policy covering directors and officers of a company can provide a valuable source of restitution for a bankruptcy estate and its creditors who have been wronged by actionable negligence and/or failures to act by corporate officers and directors. An informed plaintiff will read the applicable policy (prior to instituting suit if possible) closely, as such policies uniformly contain various exclusions to coverage.[1] When a claim against a director or officer (D&O) falls under a policy exclusion, the policy’s coverage might not apply to that claim. The insurer may issue a “reservation of rights” letter to its insured detailing those claims that the insurer has decided are not covered by the policy.

Post date: Friday, January 11, 2019

        Bankruptcy attorneys usually think of Rule 2004 of the Federal Rules of Bankruptcy Procedure as a near-unstoppable discovery tool that can be used by a debtor-in-possession (DIP), panel trustee or liquidating trustee to obtain documents needed to evaluate and successfully prosecute claims against insiders and others.[1] This to

Post date: Monday, January 07, 2019

       Student loan debt has now grown to over $1.5 trillion. Despite a relatively strong economy, more than 8 million borrowers are delinquent or are in default under their loans. Of particular concern to lenders is that these figures will only worsen if economists’ predictions for a slowing economy ring true.

Post date: Tuesday, October 23, 2018

First enacted during the Great Depression, the Perishable Agricultural Commodities Act (PACA)[1] in part sought to protect the suppliers of fruits and vegetables who had been left unpaid when purchasers went bankrupt.

Post date: Tuesday, October 23, 2018

It is been over a year since the unusual involuntary bankruptcy case of In re Scandia Seafood (New York) Inc. was tried on a motion by the assignee in an assignment for the benefit of creditors (ABC) to dismiss, and for sanctions against the petitioning creditors and their counsel.[1] What made the case unusual was that it con

Post date: Thursday, August 09, 2018

Section 523(a)(6) of the Bankruptcy Code prohibits the discharge of debts “for willful and malicious injury by the debtor to another entity or to the property of another entity.”[1] Two decades ago, the Supreme Court clarified that “[t]he word ‘willful’ modifies the word ‘injury,’ indicating that nondischargeability takes a deliberate

Post date: Thursday, August 09, 2018

A struggling real estate developer decided to do some asset-planning and transferred his partial interest in two properties to his wife as tenancy-by-the-entirety.[1] Three years later, he filed for chapter 7 bankruptcy and claimed the two properties as exempt under 11 U.S.C.


Sat, 2017-12-02

Hosted by the Bankruptcy Litigation and Commercial Fraud Committees. This panel will explore whether and how far U.S. avoidance provisions might apply extraterritorially, and will discuss the challenges and pitfalls of alternate theories of recovery.

Wed, 2017-11-15

This webinar will focus on the criminal bankruptcy fraud provisions of Title 28. The presentation will use examples from well-known bankruptcy fraud cases to illustrate how these laws play out in practice. The presentation will also touch on other criminal statutes (e.g., mail and wire fraud) that are frequently implicated in bankruptcy fraud cases.

Tue, 2017-06-06

In Janvey v. Golf Channel, Inc., No. 13-11305 (5th Cir. Aug. 22, 2016), arising from the SEC enforcement action against Stanford International Bank, Ltd., pending in the U.S. District Court for the N.D. Tex., the U.S. Court of Appeals for the Fifth Circuit addressed the issue of whether trade creditors who fully perform in the ordinary course at market rates provide reasonably equivalent value to a Ponzi scheme, under the Bankruptcy Code and fraudulent transfer law in Texas (and beyond).

Fri, 2017-04-21

This panel hosted by the Commercial Fraud and Secured Credit Committee will take a fresh look at secured creditor rights and unique solvency issues in fraud and Ponzi cases. Learn how to avoid being trumped in federal forfeiture proceedings or paying on bankruptcy clawback claims by treading in the safe harbor of § 546(e) — and learn how to navigate the shoals of receivership. 

Tue, 2016-11-29

The topic of the most recent Commercial Fraud Committee call, discussed the Uniform Voidable Transactions Act (UVTA), formerly named the Uniform Fraudulent Transfer Act (UFTA), which was amended (and retitled) in 2014 for the first time since its creation in 1984.  According to the Uniform Law Commission, the amended Act, which strengthens creditor protections by providing remedies for certain transactions by a debtor that are unfair to the debtor’s creditors, addresses a small number of narrowly-defined issues and is not a comprehensive revision of the Act.

Mon, 2016-09-19

Guest speaker, James Lodoen, Esq., a partner at Linquist & Vennum, PLLP in Minneapolis, discusses Finn v. Alliance Bank (S. Ct. Minn. 2015), Kelley v. Opportunity Finance, LLC, et al. (In re Petters Company, Inc., et al.) (Bankr. D. Minn. May 31, 2016), and the Ponzi-scheme presumption.

Tue, 2016-05-31

The Commission recommended that section 550 be amended to permit the trustee to name an alleged subsequent transferee as a defendant in the original complaint to avoid any transfer under Bankruptcy Code sections 544, 545, 547, 548, 549, or 553(b), and to recover such property under section 550, rather than filing an avoidance action prior to filing a recovery action, as the Code currently requires.

Fri, 2016-04-15

People and Assets on the Move Overseas: What You Need to Know to Hold Everything Still and Seize the Assets

Tue, 2016-01-19

The Chapter 11 Commission Report recommended that the burden of proof for appointing a Chapter 11 Trustee under 1104(a) be changed from clear and convincing evidence to a preponderance of the evidence. The Commissioners determined that the existing more stringent standard has a chilling effect on parties-in-interest seeking the appointment of a Trustee, that the benefits of having a Trustee in appropriate cases outweigh the risks of abuse and unnecessary distractions that a lower standard could bring, and that adopting a preponderance of the evidence standard would resolve a split among the courts on this issue.

Thu, 2015-11-12

During this call, Geoffrey L. Berman discussed the ABI’s Commission Report to Study the Reform of Chapter 11, particularly its recommendations related to In Pari Delicto. In addition, the committee’s leadership discussed the various projects and presentations the committee is working on in the coming months.


Mr. Ryan W. Blackney
Freeborn & Peters LLP
Chicago, IL
(312) 360-6617

Ms. Melissa Davis, CPA, CIRA, CFE
KapilaMukamal, LLP
Fort Lauderdale, FL
(954) 761-1011

Ms. Virginia Tate, CFE/CIRA/EA
Communications Manager
FAI International, Forensic Accounting & Investigations
Coeur D Alene, ID
(208) 765-5432

Mr. Walter F. McArdle, Esq.
Education Director
Spain & Gillon, LLC
Birmingham, AL
(205) 581-6295

Mr. Nathaniel J. Palmer
Membership Relations Director
Reid Collins & Tsai LLP
Austin, TX
(512) 647-6107

Mr. Michael D. Napoli
Newsletter Editor
Akerman LLP
Dallas, TX
(214) 720-4300

Mr. Adam D. Crane
Special Projects Leader
HSM Chambers
George Town, Grand Cayman, Grand Cayman
(345) 815-7364

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