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Current decisions, news and commentary regarding commercial bankruptcy cases in Delaware.

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Anti-Assignment Clause in Promissory Note Enforceable under Delaware Law to Disallow Claim Transfer

On June 20, 2018, Judge Carey of the Delaware Bankruptcy Court issued an opinion in the Woodbridge Group of Companies bankruptcies enforcing an anti-assignment clause contained in a promissory note to restrict assignment rights to third parties.  The opinion and order (a copy found here, and dated June 20, 2017), nullified the attempted transfer of a promissory note and resulting proof of claim filed by the transferee.  The Court found that the anti-assignment clause in the notes was enforceable under Delaware law, the tenets of contract law and the Uniform Commercial Code.   More ›

Jeffrey R. Waxman, Counsel to the Alleged Victims of Harvey Weinstein, was Quoted in Law360, Bloomberg and Variety Magazine

During the hearing in Wilmington, Delaware, the Weinstein Co. lost its fight to keep Harvey Weinstein’s employment contract secret. That document shows that Harvey Weinstein's actions were facilitated by the company, Jeffrey Waxman, a Morris James partner and bankruptcy lawyer for the alleged victims, said in court. Click on the links below for the full articles.

Variety Magazine - Judge Orders Release of Harvey Weinstein’s Employment Contract

Law360Weinstein Co. Must Face Sexual Assault Victims' NY Suit

BloombergWeinstein Co. Must Face Sexual Harassment Suit, Judge Rules

Brett Fallon and Brenna Dolphin Author Article on Sanctions Published by the American Bankruptcy Institute

Posted In Articles, Bankruptcy

Let’s Ask for Sanctions! (But What Kind?)
Originally published by the American Bankruptcy Institute 2018.

Courts might issue sanctions pursuant to statute,rule of procedure or inherent power, but keep in mind the American Rule: Each party bears its own attorneys’ fees and litigation expenses, and attorneys’ fees are not ordinarily among the costs that a prevailing party might recover. Courts employ narrow exceptions when imposing sanctions, which might properly have a punitive aspect
and compensatory effect. This article will review 28 U.S.C. § 1927, Rule 9011 of the Federal Rules of Bankruptcy Procedure, the inherent-power doctrine and 11 U.S.C. § 105.  Read more.

Delaware Super Lawyers® 2018 Recognizes 10 Morris James Attorneys

Posted In News

Delaware Super Lawyers® magazine has recognized five Morris James partners as top legal counsel in Delaware and five "Rising Stars®" attorneys. "Rising Stars®” is a recognition for lawyers who are 40 or under, or who have been practicing for 10 years or less. 

Super Lawyers® selects outstanding lawyers from more than 70 practice areas throughout the United States who have attained a high degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations, and peer evaluations. Only the top five percent of attorneys in each state are honored as Super Lawyers in this annual list, and the Rising Star selection is limited to only 2.5 percent of eligible attorneys, according to Super Lawyers’ website.

Morris James attorneys recognized on the 2018 Delaware Super Lawyers® list are:

Business Litigation:
P. Clarkson Collins
Jason C. Jowers
Lewis H. Lazarus
Edward M. McNally 

Employment and Labor:
David H. Williams 

Business Litigation Rising Stars:
Meghan A. Adams
Albert J. Carroll
Bryan Townsend
Patricia A. Winston 

Medical Malpractice Rising Stars:
Joshua Meyeroff

Chambers USA: America's Leading Lawyers for Business Recognizes 15 Morris James Lawyers and Issues 5 Firm Practice Rankings in the 2018 Edition

Posted In News

Thirteen Morris James partners have been named leaders in their respective fields by Chambers USA, and two additional partners were named “recognized practitioners” in Delaware for Corporate/M&A: Alternative Entities.  Morris James also received five practice recognitions.  

Recognitions:

Chancery**
Clarkson Collins Jr.
Lewis H. Lazarus
Edward M. McNally

Bankruptcy/Restructuring**
Brett D. Fallon
Carl N. Kunz III
Stephen M. Miller

Corporate/M&A: Alternative Entities
Ross Antonacci*
Lewis Ledyard*

Real Estate**
John M. Bloxom IV

Real Estate & Zoning/Land Use
Kimberly Hoffman

Labor & Employment**
James H. McMackin III
David H. Williams

Intellectual Property**
Kenneth Dorsney
Richard K. Herrmann
Mary B. Matterer

 * Recognized Practitioner
** Recognized Practice Areas

Ryan Keating Contributes to Bloomberg Law on Delaware Data Breach Compliance

Posted In Data Breach, News

Ryan T. Keating was quoted in the Bloomberg Law article, "Delaware Ramps Up Data Breach Compliance Mandates," regarding the impact of the new statute.

"The most significant change in the new statute, which updates the state’s 2005 data breach notification law, is that companies are required to “implement and maintain reasonable procedures and practices” to prevent data breaches, Ryan Keating, a member of Wilmington, Del.-based Morris James LLP’s data privacy and information governance group, told Bloomberg Law.

The amended statute does not offer guidance on what constitutes “reasonable” security, so companies developing security programs “would be wise to consider security standards published by NIST and other organizations,” Keating said, referring to the Commerce Department’s National Institute of Standards and Technology."

To view the full article, click here.

Morris James Welcomes New Director of Client Relations

Posted In News

SheikerMorris James LLP, a leading multidisciplinary law firm in Delaware, announced that Dawn V. Sheiker will join the firm in April as its Director of Client Relations. “This new position was developed to focus directly on enhancing client services,” stated Managing Partner Keith Donovan.

As the Director of Client Relations, Dawn will be responsible for developing and overseeing the firm’s client relations for this multi-office law firm. She will work proactively with department and practice area chairs and in coordination with all members of the marketing and executive committees. Her focus will be primarily on providing executive level support for the firm’s client feedback, client teaming, and general business development initiatives.

“We are dedicated to providing innovative and effective ways to serve the needs of our clients and community. Dawn’s talent and expertise will allow us to build upon this core concept and increase the sophistication and quality of service we are providing nationally and locally,” commented Keith Donovan.

Dawn brings with her more than 10 years of experience in law firm marketing and business development, including working for the past five years for an Amlaw 200 firm. Dawn Chaired the Legal Marketing Association Northeast, Philadelphia Steering Committee in 2017 after serving as President-Elect in 2016.  She also served as the association’s Treasurer in 2015 after Co-Chairing its Finance Committee in 2014. Dawn obtained an MSc in Applied Social Research from the University of Dublin, Trinity College in 2008.  She graduated with an MS in Administration of Justice from Wilmington University in 2006 after receiving her BS, cum laude, from Wilmington University in 2004.

“I am thrilled to be joining the Morris James team. The firm is well known for its national and local practices, and this provides a huge opportunity to work with a dynamic firm in its continued growth and in support of exceptional client service,” said Dawn V. Sheiker.

Morris James Receives Two M&A Advisor Turnaround Awards

Posted In Bankruptcy

On March 21, 2018, Morris James LLP received two 2017 Turnaround Awards at The M&A Advisor's Awards Gala.  The Black Tie Gala was part of the 2018 M&A Advisor's Distressed Investing Summit in Palm Beach, Florida.  Working with valued co-counsel, the two awards included:

The 363 Sale of the Year ($25MM to $100 MM) relating to the Sale of Assets of ATopTech, Inc. to Avatar Integrated Systems.  Morris James worked with Davis Wright Tremaine LLP to represent Avatar Integrated Systems Inc. is a private company located in Santa Clara, California who purchased virtually all of the assets of AtopTech, Inc., a private microchip design software company located in Santa Clara, California.

The Energy Deal of the Year ($10MM to $100 MM) relating to the Structured Dismissal of Sungevity Inc.  Working with Brown Rudnick LLP, Morris James served as Delaware counsel to the Official Committee of Unsecured Creditors to Sungevity, Inc.  Goldin Associates, LLC served as the Committee's financial advisors. Sungevity Inc. was one of the largest private residential solar installation companies in the United States. Sungevity Inc. filed for chapter 11 with approximately $185 million in prepetition debt, including funded debt, trade debt, and potential employee related claims.

Morris James partner Eric J. Monzo attended the event on the firm's behalf.  The nominations, representing over 250 participating companies, were judged by an independent jury of industry experts. In addition to celebrating the Turnaround Award winners, the 2018 M&A Advisor Lifetime Achievement Awards will be presented to Samuel J. Gerdano, Executive Director, American Bankruptcy Institute and James H.M. Sprayregan, P.C., Partner, Kirkland & Ellis, LLP. 

Ed McNally and Albert Carroll Distinguished as Two of the Top Ten M&A Authors on JD Supra

Posted In News

Readers' Choice JD SupraMorris James is pleased to announce Edward M. McNally and Albert J. Carroll have been recognized in JD Supra’s annual Readers’ Choice Awards for their thought leadership and visibility in the category of Mergers and Acquisitions. 

The annual Readers’ Choice Awards reflects a deep dive into the JD Supra 2017 readership data. Emerging from a pool of over 1750 writers on M&A and related topics, Mr. McNally and Mr. Carroll have been distinguished as two of the top-ten authors in this category. More ›

Common Interest Privilege: Delaware Bankruptcy Court Issues Opinion Distinguishing Common Legal Interest and Common Financial Interest

It's not often to see opinions discussing discovery disputes so it's noteworthy to practitioners when one appears. 

On March 5, 2018, Judge Gross issued an opinion addressing a motion to compel the Chapter 7 Trustee to produce documents consisting of communications by the Chapter 7 Trustee and his attorneys.  The Court granted the motion finding that the documents withheld were of a financial nature and directed the Chapter 7 Trustee and his counsel to produce certain post-settlement communications. The opinion was issued in connection with an adversary proceeding in the Simplexity bankruptcies filed by the Chapter 7 trustee against Versa Capital Management, LLC.  A copy of the opinion is found hereMore ›

The Delaware Bankruptcy Court's Annual Amendment to the Local Rules Is Available

The Local Rules for the United States Bankruptcy Court District of Delaware have been amended.  The amended Local Rules went into effect as of February 1, 2018.  The amended Local Rules may be found on the Bankruptcy Court's website or here.   More ›

Delaware Bankruptcy Court Dismisses Chapter 11 Petitions for Failing to Meet Good Faith Standard

In its opinion dated February 13, 2018, the Delaware Bankruptcy Court dismissed the chapter 11 cases of Rent-A-Wreck of America, Inc. and its subsidiary Bundy American, LLC (collectively, the "Debtors").  The opinion written by Judge Silverstein concluded that the chapter 11 petitions were not filed in good faith in accordance with section 1112(b) of the Bankruptcy Code. More ›

Transfer by a Non-Debtor is not a Fraudulent Transfer under DUFTA

Cystallex Int'l Corp. v. Petróleos de Venezuela, S.A. et al., 879 F.3d 79 (3d Cir. 2018).  As a matter of law, a transfer by a non-debtor cannot be a fraudulent transfer under the Delaware Uniform Fraudulent Transfer Act ("DUFTA") even where the debtor exercised complete control over the non-debtor and allegedly orchestrated transfers through the non-debtor to frustrate creditors. A copy of the January 3, 2018 opinion is found here. More ›

Happy Holidays from Morris James LLP

Planning Is Key to Treatment of Charities’ Endowment Funds in Bankruptcy

The charitable nonprofit form creates unique issues of corporate governance. Officers and directors owe fiduciary duties to their charitable institutions, and insolvency or reorganization complicates issues, particularly with regard to the handling of endowment funds.

Donors can specify how gifts are to be spent, making those funds restricted and inviolable from general use. Having restricted endowment funds on hand but lacking availability to them may further complicate the equation. The board’s perception of its predicament may be clouded because its balance sheet may appear to be flush with cash, yet some funds remain out of reach, unavailable for general use. More ›