Welcome to the November 2023 edition of the ACIC Private Notes Newsletter. In this edition, you’ll find:

• A link to the conference papers from the 2023 ACIC Fall Annual Meeting and Education Conference;
• A Save-the-Date for the 2024 Spring Investment Forum;
• An insightful interview with Jack Wallace; and
• Recent case law summaries from the following regions:

1. New England (Kevin Braun, Morgan Lewis);
2. Southern (Jeff Dutson, King & Spalding); 
3. Southwest (Clint Culpepper, Baker Botts); and
4. Rocky Mountain and Western (David Simonds and Edward McNeilly, Hogan Lovells). 

2023 Fall Annual Meeting and Education Conference

This year’s Fall Annual Meeting and Education Conference – Navigating Uncharted Waters – was held on October 19^th and October 20^th at the Westin New York Grand Central Hotel in New York City and featured a pirate’s treasure trove of insightful and informative sessions. (We promise that is our last vaguely nautical pun.) A recap of the Conference will appear in next month’s newsletter. In the meantime, you can relive all of the action by viewing the conference papers here.  

Save the Date: 2024 Spring Investment Forum

Mark your calendars: Next year’s Spring Investment Forum will take place on April 11^th and April 12^th at the Four Seasons Hotel in Chicago. Details to come! 

Advice and Insights from Jack Wallace

Click here to read an interview with Jack Wallace, Emeritus member and former Trustee of ACIC. Jack has drawn on his decades of experience in the industry to provide practical advice and words of wisdom to other attorneys, particularly those in house.

New England Region

In Novi Footwear Int'l Co. Ltd. v. Earth Opco LLC, 638 F. Supp. 3d 83 (D. Mass. 2022), the Massachusetts District Court held that Lender’s perfected security interest in goods sold to Borrower has priority over Seller’s interest in goods, despite alleged quasi-consignment arrangement between Seller and Borrower and Seller’s ownership interest in goods held by Borrower. For a full summary of the decision, click here.

In Dorsey v. Rathbun, 211 N.E.3d 73 (Mass App. Ct. 2023), the Massachusetts Appeals Court held that Lender’s claim against Borrower in seller-financing arrangement of sale of seller’s home is time barred by the 6-year statute of limitations under UCC Section 3-118, and 20 year statute of limitations for actions under witnessed promissory notes did not apply. For a full summary of the decision, click here.

In Trust f/b/o Dianne Rose u/a/ DTD 9/12/02 v. Levine, et al., 2023 WL 5310608 (D. Vt. August 17, 2023), the United States District Court (D. Vermont) reversed a bankruptcy court decision disallowing a claim related to a promissory note because of lack of consideration, finding that the note was supported by consideration in the form of antecedent debt, including credit extended to third parties and, under the Delaware UCC (which governed), these prior advances were sufficient consideration to support a subsequent note. For a full summary of the decision, click here.

Southern Region

In In re Vital Pharm., 652 B.R. 392 (Bankr. S.D. Fla. 2023), an energy drink manufacturer was deemed the owner of several social media accounts created by and portraying the former CEO. For a full summary of the decision, click here.

In Towers Watson & Co. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 67 F.4th 648, 650 (4th Cir. 2023), a reverse triangular merger that resulted in the insured becoming a wholly-owned subsidiary was an “acquisition” within the meaning of the bump-up exclusion in a D&O insurance policy. For a full summary of the decision, click here.

In Friedman v. Wellspring Capital Management, 651 B.R. 509 (Bankr. D.S.C. 2023), South Carolina conflict-of-law rules governing torts applied to fraudulent conveyance claims in an adversary proceeding brought by Trustee for creditors’ liquidation trust against equity holders of debtor. For a full summary of the decision, click here.

Southwestern Region

In Schmidt v. Nordlicht (In re Black Elk Energy Offshore Operations, LLC), 649 B.R. 249 (Bankr. S.D. Tex. 2023), investors claimed an affirmative defense of good faith when an agent of the fund distributed $125 billion of asset sale proceeds to the investors instead of secured creditors. The case hinged on whether the investors were on inquiry notice. Click here to find out the outcome and learn more.

Rocky Mountain and Western Regions

In In re MacMillan, 23-30159 (Bankr. D. Ore. Jun. 29, 2023), the United States Bankruptcy Court for the District of Oregon held that, in accordance with binding Ninth Circuit precedent, debtors may not make so-called “critical vendor” payments, as there is no statutory basis for such payments and they are contrary to the priority and distribution scheme of the Bankruptcy Code. For a full summary of the decision, click here.

In In re Lafferty v. Off-Spec Solutions, LLC (In re Off-Spec Solutions, LLC), 23-1020 (B.A.P. 9th Cir. Jul. 6, 2023), the United States Bankruptcy Appellate Panel for the Ninth Circuit, affirming the lower bankruptcy court’s decision, held that the non-dischargeability provisions of section 523(a) of the Bankruptcy Code do not apply to corporate debtors that confirm nonconsensual plans under subchapter V of chapter 11, which broadly permits certain debtors to pursue a streamlined and generally less costly reorganization process. For a full summary of the decision, click here.

In In re A&D Property Consultants LLC v. A&S Lending LLC (In re Groves), 22-1130 (B.A.P. 9th Cir. Jun. 28, 2023), the United States Bankruptcy Appellate Panel for the Ninth Circuit, affirming the bankruptcy court below, held that a bankruptcy estate may sell property jointly owned by the debtor and a non-debtor party, but the Bankruptcy Code does not permit the bankruptcy court to authorize a sale of non-debtor, co-owned estate property free and clear of liens and interests attached to the non-debtor co-owner’s share of the property. For a full summary of the decision, click here.