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What Remains of CE-Style Insurance Neutrality After GIT?
Among the most hard-fought battles involving insurers, policyholders, and asbestos claimants are those that have played out in bankruptcy courts, district courts and courts of appeals called upon to review orders confirming plans of reorganization in asbestos bankruptcies. In several instances, appellate courts have overturned such orders. See, e.g., In re Global Indus.Techs., Inc., 645 F.3d 201 (3d Cir. 2011) (“GIT“); In the Matter of Thorpe Insulation Co., 677 F.3d 869 (9th Cir. 2012); In re Combustion Eng'g, Inc , 391 F.3d 190 (3d Cir. 2005) (“CE“).
A characteristic feature of these asbestos bankruptcies is the creation of asbestos personal injury trusts to pay the claims previously brought against the bankrupt asbestos defendant. As of May 2011, there were 56 asbestos trusts in operation, with several more in process. In re Fed.-Mogul Global Inc., 684 F.3d 355, 360 (3d Cir. 2012). A major source of the funding for these trusts has been insurance settlements. Id. Because of the importance of insurance assets to asbestos bankruptcies, the objections of insurers ' as well as question of whether insurers even have standing to object ' have become central issues in these bankruptcies.
Insurers in these cases have frequently argued that bankruptcy plans impaired their rights under their policies. The bankruptcy court in CE inserted certain language into a plan of reorganization providing that insurer rights were not impaired, notwithstanding any other provision in the plan that might be to the contrary. The Third Circuit approved the bankruptcy court's wording, which has become known as “insurance neutrality” language, and held that as a result, the insurers did not have standing with respect to most issues on appeal. The language has been used in a number of subsequent bankruptcy plans, having been advocated by some insurers as a mechanism to preserve insurers' policy rights, but also embraced by some policyholder and asbestos claimants' counsel as a device by which insurers might be deprived of standing to object to plan confirmation.
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.
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.
Warehouse Liability: Know Before You Stow!
As consumers continue to shift purchasing and consumption habits in the aftermath of the pandemic, manufacturers are increasingly reliant on third-party logistics and warehousing to ensure their products timely reach the market.
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.
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.