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The directors and officers are left questioning when and how they could possibly pay for such a large claim, and the parties are caught in an expensive fight about insurance coverage.Traditionally, the “insured versus insured” exception limits the application of management liability insurance to claims by outsiders, “[n]ot unlike a homeowners’ insurance policy that excludes coverage for a fire that the policyholder intentionally sets.” 860 F.3d 373 (6th Cir. However, the application of this exception in the context of bankruptcy, liquidating trustees, and assignees of insurance policies has been varied, resulting in split circuit court opinions.decision, the “insured versus insured” exception is not going away in the bankruptcy/liquidating trustee context anytime soon.This holding may also serve as an impetus for creditors’ committees and significant creditors who think malfeasance has occurred to more proactively consider and commence D&O actions.Citing Supreme Court precedent on the issue, the Court held that the debtor company did not undergo “a transformation when it filed for bankruptcy” or become a “‘wholly new entity’ unbound by the prebankruptcy company’s contracts.” The Court also referenced the distinct characteristics of chapter 11 cases in support of its “continuing entity” interpretation; chapter 11 bankruptcy allows companies to continue to operate as going concerns, and some companies may emerge from bankruptcy as reorganized, solvent entities.Because the Court saw no legal distinction between the company’s prepetition assets, postpetition assets, or assets in the liquidating trust, it found the liquidating trustee was the “same entity” as the debtor, and the insurance company did not have to provide coverage for an action against the former company’s directors and officers.BMW also argued that the Payments were not subject to forfeiture under § 544 because German law governed the transaction and did not provide a state-law remedy for the trustee.In ruling on BMW’s motion to dismiss, the court found the Payments to be extraterritorial in nature.However, the court rejected BMW’s argument that the fraudulent transfer provisions of § 548 do not apply to extraterritorial transfers (i.e., those for which the “center of gravity” is outside the United States), concluding that § 548 applies to property everywhere in the world because any property recovered by a debtor or trustee becomes property of the estate under § 541 and the estate should have access to its property regardless of where it may be located. After determining that the complaint sufficiently pleaded that Fisker did not receive reasonably equivalent value in the form of materials, services, or otherwise from BMW after making the Payments and that Fisker had been insolvent for several years prior to the Payments, the Court allowed the trustee’s § 548 claim to proceed in part.
The justices sided with New Mexico-based investment adviser Charles Kokesh, who had been ordered by a judge to pay .4 million in penalties plus .9 million in disgorgement of illegal profits after the SEC sued him.
The majority decision stands in stark contrast with the dissenting opinion and other circuit decisions.
In her dissent, Judge Donald expressed concern that the Sixth Circuit’s decision will “send a clear message to creditors in chapter 11 proceedings that if claims against directors and officers are deemed to be of significant value and the plan proposes to put those claims into a trust, the creditors must not agree to a plan proposed.” Such a strict interpretation of the “insured versus insured” exception may significantly lessen recovery for creditors, strain judicial resources, increase professional fees, and expose directors and officers to potentially significant liability.
The debtor’s insurance company, Indian Harbor, denied insurance coverage for the action, seeking a declaratory judgment that was not obligated to provide any coverage for the action due to the insured versus insured exception.
The Sixth Circuit affirmed the district court’s decision to deny coverage, noting that the liquidating trustee stood in the shoes of the debtor when bringing the suit against the debtor’s officers and directors.Nonetheless, because Fisker made only three transfers to BMW within two years of its petition date, the Court limited the trustee’s claim under § 548 to 3,761.87 – the amount of those three payments. Next, the Court reasoned that German law, rather than Delaware or California law, governed its analysis of state-law fraudulent transfers under § 544 because the parties’ most significant contacts in connection with their agreements were in Germany.Specifically, (i) the agreements provided that they would be governed by German law with German jurisdiction, (ii) the agreements centered on BMW’s obligation to develop manufacturing facilities and produce engines for Fisker in Germany, and (3) the Payments were made in Euros and deposited in Europe.Because German law did not provide a remedy for the trustee under § 544, the Court dismissed the claim. Finally, the Court allowed the trustee’s claim for unjust enrichment to proceed for the full ,579,798.87 amount of the Payments.