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Anti-Suit Injunctions
In a case of significance to the secondary loan and distressed claim market, a North Carolina state court has entered an 'anti-suit injunction' barring a group of secondary, secured debt holders (the 'Fund Defendants'), from commencing any actions against Wachovia Bank. The case, Wachovia Bank, NA and Wachovia Capital Partners, LLC v. Harbinger Capital Partners, et al, Civ. Action No. 07-CVS-5097, is pending in the General Court of Justice, Superior Court Division (Mecklenburg, NC) (the 'State Court Anti-Suit Action'), but its parties and the underlying facts arise from the Chapter 11 case of In re Le-Nature, Inc., pending in United States Bankruptcy Court, Western District of Pennsylvania (the 'Bankruptcy Case').
The allegations in the Bankruptcy Case are lurid and filled with tales of fraudulent actions. Certain facts are clear. Shortly after Le-Nature and the Lender entered into the senior credit facility, fraud was discovered by court-appointed crisis managers and the bankruptcy followed soon thereafter.
In the Bankruptcy Case, the Fund Defendants and other secondary market purchasers not sued by the Lender formed an Ad Hoc Committee to, among other things, investigate claims available to the debtor's estate, including possible claims against the Lender. The Lender was a possible target because it, or its affiliates, had also acted as Le-Nature's financial adviser, underwriter for unsecured notes of the debtor, and investment banker to the debtor regarding a sale process. This relationship led the Fund Defendants to label the Lender as a 'trusted adviser' to the Le-Nature management team and an architect of the debtor's capital structure. The Fund Defendants maintain that no decision was made to commence any action, including against the Lender.
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