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Anti-Suit Injunctions: Is the Best Defense a Strong Offense?
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 U.S. Bankruptcy Court, Western District of Pennsylvania (the 'Bankruptcy Case').
The allegations in the Bank- ruptcy 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, court-appointed crisis managers discovered fraud 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 possible claims that the debtor's estate might have, including claims against the Lender. The Lender was a possible target because it, or 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 has led the Fund Defendants to label Lender as a 'trusted advisor' 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.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.