Insurance Laws in Bankruptcy Issues

Synopsis

Insurance issues are arising more frequently in bankruptcy proceedings. A debtor’s insurance policies (and the proceeds thereof) often represent the debtor’s most valuable asset. As bankruptcy and insurance law intersect, and sometimes collide, the road can be bumpy. This program offers a roadmap to policyholders, estate creditors, insurance companies and other interested parties who seek to preserve or assert various rights.

Our panelists, comprised of bankruptcy and insurance counsel, as well as industry professionals, will discuss various topics, including: policies/proceeds as "property of the estate" with respect to liability, D&O and E&O policies; bankruptcy proceedings that impact insurance (lift-stay applications; third-party releases; "first day" orders); standing of insurance companies and co-insured rights; the treatment of deductibles/ SIR’s and premium obligations; the enforcement and applicability of certain coverage exclusions; and the use of insurance policies as security interests by third-parties.



Outline

I. The Role of Insurance Law in Bankruptcy Proceedings
    A. Introduction
    B. Automatic Stays
    C. Reasons for Motion to Continue Insurance
    D. M F Global Case
    E. Standing
        1. Standing Overview
        2. Statutory Provisions
        3. Standing in the Plan Conformation Context
    F. Assigning Policies to a Third Party
    G. Mass Tort Litigation
    H. Releases
        1. Third Party Releases
        2. Non-debtor Releases
        3. Requirements for Approval of Third Party Releases
        4. Releases and Injunctions
     I. Liabilities
        1. General Liability
        2. Liabilities in Bankruptcy Courts
     J. Settlements between Insured, Debtor Insured, and Insurance Companies
     K. Coverage Defenses
     L. Retrospective Premiums
     M. Material Misrepresentations
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Speakers / Authors:

Photo of Rick B. Antonoff

Rick Antonoff
Clifford Chance

Rick Antonoff is a partner in the New York office of Clifford Chance. He represents domestic and foreign banks, insurance companies, private equity firms, holding companies and other parties in chapter 11 cases and out-of-court restructuring. He represents strategic and financial investors acquiring interests in financially distressed businesses and advises clients on bankruptcy and insolvency issues in securitization, derivatives, cross-border and inter-creditor transactions. He appears in court proceedings throughout the U.S. and is frequently invited to speak at legal education seminars and provide commentary for print and broadcast media.

Mr. Antonoff received his J.D. from Cardozo Law School in 1989, and his B.A. from Binghamton University in 1979.

Photo of Marshall Gilinsky

Marshall Gilinsky
Anderson Kill

Marshall Gilinsky is a shareholder in the Washington, D.C. office of Anderson Kill and practices in the Insurance Recovery, Captive Insurance and Commercial Litigation Departments. Mr. Gilinsky is a member of Anderson Kill's Financial Services Industry Group, the Hospitality Industry Practice Group as well as the Banking and Lending group. He is an experienced commercial litigator who applies his complex analysis skills with extensive experience in insurance coverage analysis and litigation and dispute resolution. Mr. Gilinsky's insurance coverage practice is focused on property insurance, commercial general liability (CGL) insurance, errors and omissions (E&O) and directors' and officers' (D&O) insurance. Mr. Gilinsky also focuses extensively on assisting clients that own and manage captive insurance companies, especially with respect to resolving coverage disputes between the captive and its reinsurers or fronting insurance companies.

Mr. Gilinsky has represented various banks, private equity firms and hospitality companies in securing insurance coverage for a wide variety of losses that affect such businesses. His experience in this regard ranges from common claims arising under CGL and D&O insurance programs to complex property insurance losses affecting multiple locations in the wake of prominent catastrophes, such as 9/11 and Hurricane Katrina.

Mr. Gilinsky's practice also includes commercial litigation, arbitration and alternative dispute resolution relating to bankruptcy, tort, contractual and regulatory disputes. Mr. Gilinsky’s success in addressing and solving clients' problems stems from his ability to understand their businesses and the context in which their legal dilemmas arise.

Mr. Gilinksy received his J.D., with Honors, from George Washington University, and his B.S. from Cornell University.

Photo of Drexel B. Harris

Drexel B. Harris

Drexel B. Harris serves as Associate General Counsel for Reliance Insurance Company (In Liquidation). He currently supervises complex and high stakes litigation with reinsurers, claimants and others and has garnered nearly $90,000,000 in recoveries for the Reliance estate. He also provides advice on bankruptcy, liquidation legal issues, contracts and other matters.

In his career with Reliance, other carriers and in private practice, Mr. Harris has counseled and advocated for his clients on most facets of the property and casualty insurance business including reinsurance, casualty and specialty insurance coverages, alternative risk arrangements, managing general agent programs, security and financing agreements, sales of company assets, outsourcing, rating, policy drafting and other regulatory and compliance issues. He is a member of the Board of Directors of Bridge Street Development Corporation, a Brooklyn based not-for-profit providing affordable housing, foreclosure prevention and economic development.

Mr. Harris is a Chartered Property Casualty Underwriter and is admitted to practice in New York and New Jersey. He is a graduate of the University of Maryland and New York Law School.

Photo of Tandis Hassid Nili

Tandis Hassid Nili

Tandis Hassid Nili is a Vice President in the National Casualty Brokerage Group at Aon, managing complex liability programs for various prestigious clients worldwide. Over her tenure at Aon, Ms. Nili has counseled countless clients on liability coverage as well as business and regulatory issues, and assisted them in choosing and implementing appropriate risk management strategies.

She is also a member of Aon’s Casualty Coverage Consultation, Advocacy and Claims Resolution Practice, advocating for clients in General and Products Liability as well as Umbrella and Excess Liability program disputes. Her in-depth knowledge of liability programs coupled with her legal background, and strong network within the insurance community allow her to best represent and protect Aon’s clients’ interests and assets.

Photo of Dennis J. Nolan

Dennis J. Nolan
Anderson Kill P.C. 

Dennis J. Nolan, a shareholder in Anderson Kill's New York office and chair of the firm's Bankruptcy and Restructuring Group, concentrates his practice in bankruptcy and restructuring and insurance recovery. Mr. Nolan has extensive experience representing debtors, creditors’ committees and unsecured creditors in complex chapter 11 reorganizations. In many cases, his practice sits at the nexus of bankruptcy and insurance, as insurance is often a key asset in bankruptcy.

Mr. Nolan has represented clients including a major financial services institution in an Errors and Omissions and Directors' & Officers' insurance dispute in connection with a bankrupt subsidiary; a leading technology company in London arbitration of an insurance coverage dispute hinging on policy periods; and "feeder fund" defendants in the Madoff bankruptcy. In the Madoff litigation, Mr. Nolan is a part of a team that has taken the lead among multiple defendants on a novel issue of law; whether the Securities Investor Protection Act and other securities laws alter the good faith defense under section 548(c) of the Bankruptcy Code to an actual fraudulent transfer claim. Mr. Nolan has also handled diverse matters in commercial litigation, including copyright infringement, fraud and breach of fiduciary duty claims against officers and directors, and antitrust. In the wake of Superstorm Sandy, he has provided pro bono counsel to homeowners who suffered property damage in the storm. In prior years, he also had significant responsibility for claims filed with the September 11th Victims' Compensation Fund.

Mr. Nolan is co-chair of the firm's Financial Services Industry Group and is a frequent contributor to the group's blog. He is also a member of Anderson Kill's Foreign Investment Recovery Practice group.

Mr. Nolan received his J.D. from Fordham University School of Law, and his B.A. from Fordham University College of Rose Hill.

Photo of Steven B. Smith

Steven B. Smith
Dickstein Shapiro LLP 

Steven B. Smith focuses his practice on complex corporate restructuring and creditors’ rights, including in court Chapter 11 and Chapter 15 bankruptcy cases and out-of-court workouts. He has extensive experience representing official and ad-hoc creditor committees, secured lenders, administrative and collateral agents, indenture trustees, individual bondholders, distressed debt and activist investors, stalking horse and other asset purchasers, trade and tort claimants, and other significant parties-in-interest in restructuring related matters in a variety of jurisdictions across the United States. Steve is also experienced in the analysis of true sale, non-consolidation, and bankruptcy remoteness principles in opinion and related contexts.

Steve spent more than 10 years at two premier international law firms representing significant parties-in-interest in some of the biggest Chapter 11 cases ever filed. He joined Dickstein Shapiro from Edwards Wildman Palmer LLP.

While in law school, Steve served as a judicial intern to Chief Judge William H. Gindin of the U.S. Bankruptcy Court for the District of New Jersey. He is on the Board of Editors for The Bankruptcy Strategist, is a member of the Strafford Bankruptcy Law Advisory Board, is a “Master” with The Bankruptcy American Inn of Court, and he is a member of the American Bankruptcy Institute and the New York City Bar Association.

Mr. Smith received his J.D. from Brooklyn Law School in 1999, and his B.A. from Yeshiva University in 1996.

Photo of N. Theodore Zink

N. Theodore Zink
Chadbourne & Parke LLP
 

N. Theodore Zink, Jr. is a partner at Chadbourne & Parke LLP. He has more than 25 years of experience in bankruptcy, workouts and creditors’ rights. He also has substantial experience in structured finance, and general corporate and transactional matters.

Mr. Zink has handled various bankruptcy situations and troubled credit workouts, including the representation of debtors in pre-packaged and conventional Chapter 11 cases, advising agent banks in the out-of-court restructuring of syndicated facilities, representing secured and unsecured lenders in Chapter 11 and cross-border insolvencies, and advising directors and other fiduciaries of troubled companies and debtors in possession. He has handled numerous insolvency matters involving the energy industry and the media industry. He routinely advises clients on structured and project finance transactions in regard to bankruptcy remoteness, non-consolidation, and true sale issues.

Mr. Zink is the author of several recent articles in professional journals and provides frequent written updates and alerts to our clients on developments in the area.

Mr. Zink is admitted to practice in Missouri, Illinois, and New York. He received his J.D. in 1984 from Washington University in St. Louis School of Law, his M.B.A. in 1978 from Olin School of Business at Washington University in St. Louis, and his B.B.A. in 1976 from University of Notre Dame.

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Details

Course Code : 773144

Release Date: 4/9/2014 12:00:00 AM
Recorded Date: 10/10/2013
Length: 1hr 47min
Format Type: Video

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