In recent years, bankruptcy trustees, receivers and other plaintiffs in asset recovery actions have aggressively pursued claims against directors and officers, as well as outside professionals of distressed and insolvent entities - accountants, auditors, attorneys, lenders and advisors.
Until recently, deepening insolvency has proved to be a theory of recovery with some vigor. Deepening insolvency has been described as the fraudulent prolongation of a corporation’s life beyond insolvency, that results in damage to the corporation by increased debt. Recent decisions on deepening insolvency, whether asserted as a separate cause of action or as a theory of damages, indicate that the doctrine is eroding as an independent means of recovery. Nonetheless, secured creditors need to continue to be vigilant in avoiding the risk of a claim for lender liability, including claims that the secured creditor helped conceal the extent of financial difficulties, exerted undue control over the distressed debtor and customers and supported an unrealistic workout.
Agenda
Faculty
Lorraine S. McGowen
Orrick, Herrington & Sutcliffe LLP
- Partner at Orrick, Herrington & Sutcliffe LLP
- Has practiced in the areas of creditors' rights and bankruptcy for more than 25 years
- Represents troubled companies and municipalities, formal and ad hoc creditors' committees and secured and unsecured creditors, and other significant parties in complex bankruptcy cases, corporate restructurings and other insolvency matters, and has extensive experience representing public and private entities in out-of-court workouts, bankruptcy and orderly wind-down or dissolution proceedings
- Conducts regular seminars and workshops on bankruptcy and insolvency issues
- Writer of several publications related to bankruptcy and insolvency issues, including, Highly Leveraged Companies in Distress Beware, Expect Your Secured Creditors to Exert More Control, The Americas Restructuring & Insolvency Guide, 2008/2009, September 29, 2008
- Membership information: American Bankruptcy Institute, American Bar Association, Business Law Committee, American College of Investment Counsel, The Association of the Bar of the City of New York, and the District of Columbia Bar
- J.D. degree, Columbia Law School; B.S. degree, School of Foreign Service, Georgetown University
- Can be contacted at 212-506-5114 or [email protected]
Laura D. Metzger
Orrick, Herrington & Sutcliffe LLP
- Partner at Orrick, Herrington & Sutcliffe LLP and office leader of New York Office
- Represents clients involved in bankruptcies, out-of-court restructurings, foreclosure auctions, distressed sales and acquisitions, bankruptcy litigation, structured finance restructurings, refinancing and creditors’ rights controversies
- J.D. degree, magna cum laude, Order of the Coif, Yeshiva University, Benjamin N. Cardozo School of Law; B.A. degree, magna cum laude, Barnard College
- Can be contacted at 212-506-5149 or [email protected]
Jennifer Asher
Orrick, Herrington & Sutcliffe LLP
Jennnifer Asher
- Managing associate in Orrick, Herrington & Sutcliffe LLP's restructuring practice, where she has advised a variety of clients, such as debtors, creditors and lenders, in restructuring-related matters
- Represents a broad spectrum of clients in financial restructuring and insolvency matters and takes a creative approach to applying her skills across various industries
- Active member in the New York Women's Affinity Group
- Prior to joining Orrick, she was an associate at King & Spalding LLP, where she was a member of the Financial Restructuring Practice Group
- Prior to attending law school, she was an audit associate at KPMG LLP. While at KPMG, she was a member of the audit teams at Citigroup and Credit Suisse
- Certified Public Accountant
- J.D. degree, cum laude, St. John’s University School of Law; B.S. degree, summa cum laude, Binghamton University School of Business
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