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The Brief Case for Insurer Standing in Asbestos Bankruptcies
Debtors facing mass-tort asbestos liability frequently challenge their insurers' standing to appear in the debtors' bankruptcy cases. They typically argue that their insurers have no standing because the proposed bankruptcy plan is “insurance neutral.” Debtors contend alternatively that the insurers' standing is limited to specific issues directly affecting the insurance contract, such as whether the debtor may assign policy proceeds notwithstanding anti-assignment provisions contained in the policy. Despite insurers' strong incentives to participate in mass-tort bankruptcies, bankruptcy courts have frequently been willing to suppress insurer objections that the debtor finds inconvenient.
Following the Third Circuit's 2004 decision in Combustion Engineering, it is increasingly clear that insurers have standing at least to ensure that the proposed plan does not directly alter the insurers' contractual rights. Stated differently, insurers can make certain that a proposed plan truly is “insurance neutral.” There is, however, no definition for “insurance neutral” in the Bankruptcy Code. Nor is there any consensus on what it should mean. Faced with uncertainty concerning the scope of insurers' right to participate, debtors and insurers in several recent cases have negotiated “insurance neutrality” stipulations and specifically bargained over the issues as to which the insurers will be heard. See e.g., In re Kaiser Aluminum Corp., Case No. 02-10429 (Bankr. D. Del. Nov. 2005); In re Federal Mogul, Case No. 01-10578 (Bankr. D. Del. 2005). Even in those cases, the debtors have argued that the insurers lack standing to raise arguments specifically preserved in the stipulations. See e.g., Transcript of Jan. 9, 2005 Hearing, In re Kaiser Aluminum, No. 02-10429 (Bankr. D. Del.), at 123:19-24. Nevertheless, putting aside those cases and the inherent compromises they embody, insurers continue to assert standing in their insureds' mass-tort driven bankruptcies.
Why So Many Great Lawyers Stink at Business Development and What Law Firms Are Doing About It
Why is it that those who are best skilled at advocating for others are ill-equipped at advocating for their own skills and what to do about it?
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.
Blockchain Domains: New Developments for Brand Owners
Blockchain domain names offer decentralized alternatives to traditional DNS-based domain names, promising enhanced security, privacy and censorship resistance. However, these benefits come with significant challenges, particularly for brand owners seeking to protect their trademarks in these new digital spaces.