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Thus, as recognized by the bankruptcy court, the two-year grace period granted by 108(a) would arguably expire as early as June 7, 2001, the second anniversary of the entry of the first order for relief in these bankruptcy cases. Issue preclusion, on the other hand, can apply even though there is not an identity of parties in the earlier and later matters so long as the issue of law or fact for which preclusive effect is sought has been actually litigated and decided in a prior action and reduced to judgment. 108(b) permits the Trusts claims against the defendants to survive the statute of limitations. Here, the plaintiff Trust is a Delaware trust, and, in light of Beloit Corporations choice of Delaware not only as the state in which to incorporate but, significantly, as the state in which to seek protection of the bankruptcy court, it can hardly be said that Delawares contacts with this case are so de minimis so as to make application of its law officious intermeddling. Meyer, the president, principal shareholder, and director of Amasa Lumber, that the companys assets were more than sufficient to repay her, and that his interest in the company was subordinated to her loans. 409, 411 (1931) (It is when a corporation ceases to be a going institution, or its business is in such shape that its directors know, or ought to know, that suspension is impending, that its assets in the hands of such directors become, by equitable conversion, a trust fund for the benefit of its general creditors, so that, if such directors prefer themselves over such general creditors, such action constitutes a fraud in law, and equity will compel them to make restitution of all property thereby diverted to their personal benefit to the prejudice of such creditors.) (quoted source omitted) (emphasis added); Cream City Mirror Plate Co.
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On behalf of the defendants-respondents, James A Chokey, Mark E. As material to this appeal, the supplemental complaint alleged that the defendants breached their fiduciary duties to both Beloit Corporation and its creditors, and that the defendants wasted the assets of Beloit Corporation. The Settlement Agreement recited, it is expressly agreed that any settlement or judgment against any current or former [Beloit Corporation or Harnischfeger] director or officer will be payable solely from any applicable insurance of the Beloit Entities [as defined by the Agreement] or the [Harnischfeger] Entities [as defined by the Agreement] covering such directors and officers liabilities (specifically excluding any individual umbrella policies of such directors or officers). Although the bankruptcy courts assumption that the Committee of Unsecured Creditors and, later, the Trust, could use 108(a) to avoid the statute-of-limitations bar was not litigated as such in the bankruptcy proceeding, it was not litigated because no one, not the debtors or the defendants, objected to the bankruptcy courts June 5 order. As indicated above, Amasa Lumber Company was a solvent and going concern until well after Joseph Meyers connection with the corporation was severed. Although the third set of italicized words in the quotation from Mc Givern can be read as requiring both insolvency and a cessation of business, that reading would ignore the inherent redundancy of the phrase insolvent and no longer a going concern (that is, a cessation of doing business as a going concern that was not caused by insolvency would not prejudice those to whom debts were owed).
Mechling of Stroock & Stroock & Lavan LLP, New York, New York. Daffin, the cause was submitted on the briefs of Paul F. The Trust appeals from an order dismissing its supplemental complaint against seven persons whom the supplemental complaint alleges were, during the time material to this appeal, officers or directors of Beloit Corporation or Harnischfeger Industries, Inc., which was Beloit Corporations eighty-percent controlling shareholder. Indeed, evidence in the record of the give-and-take nature of the negotiations is that any recovery by the Trust against the defendants will not run against the defendants personally. As we have seen, the defendants or those aligned with their interests, as evidenced by not only the defendants management positions with the debtors in possession, as recounted in footnote one, but also by the refusal of the debtors in possession to sue the defendants, had significant input in the Plans formulation. Some of the language in Haywood may appear to support the existence of some type of fiduciary relationship between corporate directors and creditors generally, regardless of solvency or insolvency of the corporation. W.2d at 377378 (internal citations omitted) (emphasis added).
nor impair any defenses, offsets or counterclaims such parties may have. When Beloit Corporation and Harnischfeger filed their voluntary petitions for relief under Chapter 11 of the Bankruptcy Code, an estate was created that was comprised of, inter alia, all legal or equitable interests of the debtor[s] [Beloit Corporation and Harnischfeger] in property as of the commencement of the case.
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The complaint further noted that [i]t is anticipated that, shortly after the effective date of the Plan and pursuant to the powers vested in it by the Plan, the Beloit Liquidating Trust will be substituted as plaintiff herein and will assume the prosecution of this action for the benefit of the beneficiaries of the Beloit Liquidating Trust. As we have seen, the circuit court dismissed the Trusts claims asserted on behalf of Beloit Corporation because it concluded that the two-year statute of limitations for intentional torts expired before June 5, 2001, and was not extended by 11 U.
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of the Bankruptcy Code may arguably expire as early as June 7, 2001, the second anniversary of the entry of the first order for relief in these bankruptcy cases. W.2d 578, 583 (1983) (tort claims shall accrue on the date the injury is discovered or with reasonable diligence should be discovered, whichever occurs first), saves the claims. 1107(a) (With exceptions not material here, a debtor in possession shall have all the rights ... by a representative of the estate appointed for such purpose of claims belonging to the debtor or to the estate) (referencing 11 U.
Under the Settlement Agreement between the parties as incorporated in the Debtors Third Amended Plan of Reorganization, both Beloit Corporation and the Committee of Unsecured Creditors expressly retain the right to assert any claims that Beloit [Corporation] may have against (i) any current or former officers or directors of Beloit [Corporation] arising out of or connected with such persons role as an officer or director of Beloit [Corporation], and (ii) any person who was not a director of [Harnischfeger] on the Petition Date and who was at any time an officer of [Harnischfeger]; and [R]epresentatives of the Debtors advised counsel for the [Committee of Unsecured Creditors] that the Debtors do not believe there are meritorious claims against the officers or directors, and therefore are unwilling to prosecute any such claims. We need not decide these matters, however, because the supplemental complaint alleges that all or some of the defendants did things upon which the Trust bases its claims within two years preceding the June 7, 1999, bankruptcy filing date. includes any right of action the debtor corporation may have to recover damages for misconduct, mismanagement, or neglect of duty by a corporate officer or director.). 1984) ([W]hile normally the fiduciary obligation of officers, directors and shareholders is enforceable directly by the corporation or through a stockholders derivative action, it is, in the event of bankruptcy of the corporation, enforceable by the trustee.) (quoted source omitted), or by the debtor in possession, 11 U. of a trustee serving in a case under this chapter.).