Last month, we reported on two recent Delaware cases that came to opposite conclusions as to whether a bankruptcy court has subject matter jurisdiction over state law claims asserted by a post-confirmation litigation trust: <i>IT Litigation Trust v. D'Aniello, et al.</i> (<i>In re: IT Group, Inc., et al.</i> held that the court had subject matter jurisdiction over such claims, while <i>Shandler v. DLJ Merchant Banking, Inc., et al.</i> (<i>In re Insilco Technologies, Inc.</i>)(<i>Insilco</i>) held that it did not. After the article went to press, the Delaware courts weighed in on the subject for the third time in only 3 months. This article provides the update.

Features

As anyone who has advised a private equity fund in connection with the potential insolvency of one of its portfolio companies knows, reconciling the duty of the fund's designated directors sitting on the portfolio company's board with the fund's duties to its investors can feel like a high wire act at times. As fiduciaries for its investors, the fund's managers must act in a manner consistent with maximizing the return on invested funds. Yet, these same managers are often directors of the fund's portfolio companies. While a portfolio company is thriving, the duties to the fund's investors and the fund manager's duties as a director of the portfolio company are typically in harmony. However, when the portfolio company's business turns sour, and it approaches insolvency or is insolvent, the shifting of the directors' fiduciary duties to the company's creditors can cause irreconcilable conflicts of interest along with consternation on how to fund ongoing operations. This article discusses possible structural mechanisms to address and potentially avoid these irreconcilable conflicts while still maintaining the ability to manage the fund's investment and fund the portfolio company's ongoing business.

National cases you need to know.

In the 2005 Special Issue of <i>Employment Law Strategist</i>, we summarized key issues affecting employers following the Hurricane Katrina disaster, including the federal government's legislative and regulatory responses to the catastrophe. The following is an updated summary of relevant legislative and regulatory actions.

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When I entered law practice in 1971, it was common in corporate criminal investigations for a single law firm to represent the target corporation and all its relevant employees. They hung together lest they hang separately. Over time, practice changed, and such joint-representation arrangements mostly disappeared. The old paradigm was succeeded by a new one, which recognized the separate interests of the corporation and each of its relevant employees, but also provided a large measure of mutual support and good will on the defense side. This paradigm, too, has been attacked by prosecutors and now has largely disappeared in major federal and some state investigations. It has been succeeded by a new, far harsher paradigm.

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How much freedom does a party have to tell its service provider not to use a given employee to provide the services? Although the freedom to contract (or not contract) might suggest that this liberty is unfettered, a recent decision by the Second District Appellate Court of Illinois suggests that the answer is not so clear.

Recent rulings you need to know.

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