Restructuring

The issue of whether directors, officers, and/or shareholders breached their fiduciary duties to a company prior to bankruptcy is commonly litigated in chapter 11 cases, as creditors look to additional sources for recovery, such as D&O insurance or “deep-pocket” shareholders, including private equity firms.  The recent decision in In re AMC Investors, LLC, 637 B.R. 43 (Bankr. D. Del. 2022) provides a helpful reminder of the importance of timing in bringing such claims and the use by defendants of affirmative defenses to defeat those claims.  

In AMC Investors, the Delaware bankruptcy court granted the defendants’ motion for summary judgment on their affirmative defenses.  The bankruptcy court found that the debtor’s claims for breach of fiduciary duty and aiding and abetting breach of fiduciary duty were barred by Delaware’s statute of limitations, as well as the doctrines of res judicata and collateral estoppel.  The lawsuit in the case had been commenced by a prepetition lender derivatively on behalf of the debtors’ estates after the bankruptcy court gave the lender standing to do so.  The fact that the same lender had previously sued the debtors and their operating subsidiary based on similar factual issues proved fatal to the later chapter 11 adversary proceeding. 

Among other interesting issues this case raises is how the doctrines of statute of limitations, res judicata, and collateral estoppel apply in a situation where the same creditor that brought a prepetition lawsuit later commences an adversary proceeding derivatively on behalf of the debtor based on similar issues. Is there privity of parties in the two lawsuits?  Whose knowledge is relevant for statute of limitations tolling purposes – the party suing derivatively or the debtor?  Can a lawsuit commenced by a non-debtor party prepetition be considered the same claim as an adversary proceeding brought on behalf of the debtor’s estate in bankruptcy?  In AMC Investors, the bankruptcy court took a pragmatic approach to these questions, looking beyond formalities and focusing on who stood to gain what based on the relevant facts. 

I. Factual Background and Procedural History

The debtors in AMC Investors were two holding companies (together, the “Debtors”) that controlled AMC Computer Corp. (“AMC Computer”), a hardware and services company.  In January 2003, AMC Computer entered into a credit agreement with lender Eugenia VI Venture Holdings, Ltd. (“Eugenia”) to finance AMC Computer’s operations (the “Credit Agreement”).  The Debtors provided Eugenia with an unconditional guarantee of AMC Computer’s obligations under the Credit Agreement. 

In May 2005, after the revelation of potential accounting misstatements, Eugenia declared a default under the Credit Agreement, putting AMC Computer out of business.  Thereafter, Eugenia filed myriad lawsuits in New York state and federal courts against various individuals and entities involved with AMC Computer, including the Debtors. 

First, in September 2005, Eugenia filed suit against the Debtors in New York State court to collect on the Credit Agreement guarantee.  In July 2007, the court entered judgment in favor of Eugenia, awarding damages of approximately $10.7 million.  The Debtors appealed.

Next, in July 2006, Eugenia brought seven related suits in the U.S. District Court for the Southern District of New York, suing both directly and derivatively on behalf of AMC Computer and alleging fraud and breaches of fiduciary duty in connection with AMC Computer’s default under the Credit Agreement.  The federal district court granted the defendants’ motion for summary judgment on both the fiduciary duty and fraud claims, which the U.S. Court of Appeals for the Second Circuit subsequently upheld on appeal. 

On September 30, 2008, while Debtors’ appeal of the New York state court ruling was pending, Eugenia filed involuntary petitions against the Debtors in the United States Bankruptcy Court for the District of Delaware.  Eugenia thereafter obtained derivative standing from the bankruptcy court to sue derivatively on the Debtors’ behalf. 

On June 3, 2011, Eugenia filed an adversary proceeding on the Debtors’ behalf (the “Plaintiffs”) for breach of fiduciary duty and aiding and abetting fiduciary duty against certain defendants that were officers, directors, and/or shareholders of AMC Computer and controlled both the Debtors and AMC Computer (the “Defendants”).  The Defendants included three private equity firms that managed and controlled the Debtors.  The action asserted that Defendants mismanaged AMC Computer, causing damages to the Debtors in the amount of the breach of contract judgment.  The Defendants answered together and raised the affirmative defenses of statute of limitations, res judicata, and collateral estoppel. 

The Plaintiffs then filed a motion for summary judgment seeking to dismiss Defendants’ affirmative defenses.  On January 23, 2015, the bankruptcy court issued an opinion denying the Plaintiffs’ summary judgment motion, finding that certain facts supported the Defendants and there were genuine issues of material fact on other issues.  That decision, In re AMC Investors, LLC, 424 B.R. 63 (Bankr. D. Del. 2015), is a helpful companion to the recent decision.¹

On appeal, the Delaware district court issued an opinion reversing and remanding the case on “extremely limited” grounds relating to the statute of limitations defense.²  Because the alleged wrong occurred between January 2003 and May 2005 and the adversary proceeding was not filed until June 3, 2011, the claims were time-barred unless the statute of limitations could be tolled.  The district court ruled that in determining whether any of Delaware’s tolling doctrines was available to the Plaintiffs, the bankruptcy court improperly focused solely on Eugenia’s knowledge.  According to the district court, Eugenia’s knowledge could not be imputed to the Debtors (the real Plaintiffs) even though Eugenia was the party bringing the claims derivatively on the Debtors’ behalf.  

Subsequently, the Defendants filed a summary judgment motion in the bankruptcy court on their threshold affirmative defenses.  The bankruptcy court granted the motion and issued the 2022 opinion. 

II. Legal Reasoning

a. Statute of Limitations Analysis

The primary issue before the Delaware bankruptcy court in 2022 was whether there was a basis to toll the statute of limitations.  The bankruptcy court began by describing the three tolling doctrines recognized in Delaware:  (i) inherently unknowable injuries, (ii) fraudulent concealment, and (iii) equitable tolling.  It noted, however that “no theory will toll the statute beyond the point where the plaintiff was aware, or should have been aware, of facts giving rise to the wrong.”³  Moreover, “a plaintiff’s lack of standing is not an independent basis for tolling the statute of limitations.”⁴  As such, the key inquiry was when the Debtors (not Eugenia) knew, or should have known, of the existence of facts sufficient to put the Debtors on inquiry notice of the fiduciary duty claims.    

The bankruptcy court found that the Debtors had direct knowledge of the facts underlying these breach of fiduciary duty claims by or around September 8, 2005, the date when Eugenia filed its lawsuits in New York against the Debtors on their guarantee of the Credit Agreement. 

The bankruptcy court highlighted that the New York lawsuit and the adversary proceeding lawsuit both stemmed from the alleged fraud that occurred at AMC Computer, Eugenia’s declaration of a default under the Credit Agreement, and Eugenia’s mission to recover monetarily on account of that default.  The first lawsuit expressly put the Debtors on notice of the existence of facts surrounding the breach of fiduciary duty claims.  Accordingly, the Debtors discovered, or should have discovered, the existence of facts to put them on inquiry notice of the basis of the adversary proceeding claims by September 8, 2005. 

The bankruptcy court rejected the Plaintiffs’ argument that the court should equitably toll the statute of limitations for the Defendants’ post-September 2005 acts in delaying creditors’ ability to bring a derivative action.  Under Delaware law, courts will employ equitable tolling following a breach of fiduciary duties where manifest injustice would otherwise result.  Delaware courts may also equitably toll the statute of limitations “where the plaintiff in some extraordinary way has been prevented from asserting his or her rights.”⁵  Dismissing this argument, the bankruptcy court noted that a claim “accrues at the moment of the wrongful act … not when the harmful effects of that act are felt.”⁶  In addition, “Delaware courts do not recognize adverse domination – when a corporation’s board is controlled by culpable directors – as a basis for tolling a breach of fiduciary duty action.”⁷ Therefore, the Debtors were already exposed to liability, and thus their claims accrued, at the time Eugenia declared a default under the Credit Agreement in May 2005.  Alternatively, the Debtors were apprised of their risk of liability when Eugenia filed a lawsuit against the Debtors shortly thereafter to recover on the guaranty based on the same factual predicate.

Accordingly, because there was no basis to toll the statute of limitations, the Plaintiffs’ claims were time-barred.

b. Res Judicata Analysis

Next, the bankruptcy court evaluated whether res judicata (also known as claim preclusion) barred the claims.  Res judicata seeks to prevent duplicative litigation by barring a party that had a chance to litigate a claim before “an appropriate tribunal” from having another chance to do so.⁸  Under New York law (applicable because New York is the state where the court that rendered the first judgment sat), res judicata is an affirmative defense if: (1) the earlier decision was a final judgment on the merits; (2) plaintiffs in both suits are the same or in privity; and (3) the claims raised are the same.

The bankruptcy court had already found in its 2015 opinion that two elements of the res judicata test were satisfied.  Specifically, the Second Circuit’s affirmance of the federal court’s grant of summary judgment in the prepetition AMC Computer litigation constituted a final judgment on the merits.  In addition, utilizing New York courts’ “pragmatic approach,” the bankruptcy court found that “the prior and present actions clearly arise out of the same transaction.”⁹  This means the earlier judgment is dispositive not only of the theory brought in the first lawsuit but “also of all other theories that might have been cited in support against the same wrong,” whether raised or not.  These findings were now “law of the case,” thus satisfying the third prong.¹⁰  Therefore, the only remaining issue with respect to res judicata was whether the element of privity was met.

Privity was at issue because the actual Plaintiffs in the adversary proceeding were the Debtors, even though Eugenia brought the action derivatively on their behalf.  The plaintiffs in the prior lawsuits were Eugenia directly and AMC Computer derivatively through Eugenia.  The bankruptcy court focused on the “alternative test” for privity under New York law, which centers on whether a party, though not formally involved, nevertheless exercised control over the earlier litigation.¹¹  After analyzing the additional discovery exchanged since the court’s 2015 opinion, the bankruptcy court stated that it was clear that Eugenia controlled both the previous and current litigation, thus satisfying the alternative test of privity.  Even though Eugenia filed the New York proceeding derivatively on behalf of AMC Computer and then the adversary proceeding derivatively on behalf of the Debtors, “the practical reality” was that Eugenia was seeking to recover on its own $10.7 million judgment in both suits.¹²  Eugenia’s principal made the decision to file both the previous lawsuits in 2005 and the adversary proceeding, and he used the same counsel in both actions.  Accordingly, the same party – Eugenia – controlled both litigations.  Moreover, the two parties on whose behalf Eugenia brought the action, the Debtors and AMC Computer, were in privity with each other.  Having found privity, the court held that the principles of res judicata also barred Plaintiffs’ claims.

c. Collateral Estoppel Analysis

Finally, the bankruptcy court held that the doctrine of collateral estoppel (also known as issue preclusion) barred Plaintiffs from relitigating the issue of the timing of AMC Computer’s insolvency, which was fatal to the breach of fiduciary duty claims.

Collateral estoppel seeks to bar “litigation, between the same parties or their privies, of issues that have already been determined in an earlier proceeding.”¹³  The primary underlying policies are the avoidance of inconsistent legal results and the preservation of judicial resources.  The bankruptcy court explained that under New York law, collateral estoppel applies if (i) “the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action;” (ii) “the plaintiff had a full and fair opportunity to litigate the issue in the earlier action;” and (iii) both actions involve the same parties or their privies.¹⁴  As with res judicata, courts reject a rigid test and favor instead “a flexible, case-by-case approach.”¹⁵

The key issue in the bankruptcy court’s collateral estoppel analysis was whether AMC Computer was already insolvent when it entered into the Credit Agreement.  Specifically, if AMC Computer was already insolvent when it entered into the Credit Agreement, Eugenia would be unable to demonstrate that the Defendants’ mismanagement rendered the company insolvent or caused Eugenia’s damages.  This is because, among other things, New York law requires more than “deepening insolvency” to demonstrate that a company has been damaged.¹⁶  

As to the first element, the bankruptcy court noted that the New York district court made a factual finding that AMC Computer insolvent at the relevant time and that this finding was “actually determined” and “necessary” to the court’s dismissal of Eugenia’s breach of fiduciary duty claims.¹⁷  Thus, the first element of collateral estoppel was satisfied.

Second, the court found that the Plaintiffs had a full and fair opportunity to litigate the issue of AMC Computer’s insolvency.  The court pointed to discovery revealing that the same party and counsel that controlled the adversary proceeding also controlled the prior litigation.  That, taken together with the court’s findings that: (1) the significant amount of money involved in the New York action ensured there was a “vigorous fight on the issue of liability” and (2) the same factual allegations in this proceeding were at the center of previous litigation, led the court to conclude that the Plaintiffs did in fact have their day in court.¹⁸

Third, as the analysis of privity under collateral estoppel is the same as under res judicata, the element of privity was satisfied.

III. Takeaways

The most important lesson of AMC Investors is that parties need to be mindful that doctrines like res judicata, collateral estoppel, and limitations periods, which are often pled as “boilerplate” defenses, are real, potent, and must be considered early in the litigation process.  This is especially true in the context of bankruptcy litigation, which very often involves circumstances where prepetition litigation on relevant issues occurred.  As AMC Investors makes clear, courts will take a flexible approach to these doctrines to minimize relitigation and preserve judicial resources.

The authors would like to thank Ted Tsekerides (Weil litigation partner) for his valuable assistance in reviewing this article.