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the Litigation Trust fails to explain is that if this opinion was wrong, a matter that it does

not try to prove at this stage, any claim would belong to Trenwick. Moreover, the proper

party to sue Trenwick for any violation of the indenture would be the noteholders or the

trustee under that particular indenture (as the case may be, in compliance with the

indenture’s terms) and not Trenwick America. Furthermore, even if a court might

conclude that its view of the legal matter addressed in the Baker & McKenzie opinion

was, on balance, different, that conclusion would not dictate that the law firm committed

malpractice. In that regard, the complaint does not even attempt to plead facts supporting

an inference that the opinion in question had no reasonable basis in law or fact. Given

that the only asset not transferred in the transaction was an intercompany payable,151

given that all of the remaining assets of Trenwick were transferred to Chartwell Re, and

given that the assets transferred comprised approximately 81.6% of those assets backing

the indentures (according to the Litigation Trust itself),152 that inference would be hard to

draw, if one assumes that the term in the indenture is to be interpreted consistently with

its use in Delaware’s jurisprudence under 8

§ 271.153

151 In addition, the complaint never makes it clear how it would have helped Trenwick America if it had received an intercompany payable owed by another wholly-owned Trenwick subsidiary, Chartwell Re, to Trenwick. Trenwick became insolvent itself, in large measure according to the Litigation Trust because the relevant subsidiary, Chartwell Re, had inadequate reserves stemming from the period before it was acquired by Trenwick.

152 153 Compl. ¶ 80. , 858 A.2d 342, 377-78 (Del. Ch. 2004) (“It would be less than candid to fail to acknowledge that the § 271 case law provides less than ideal certainty about the application of the statute to particular circumstances. This may result from certain decisions that appear to deviate from the statutory language in a marked way and from others that have dilated perhaps longer than they should in evaluating asset sales that do not seem to come at all close to meeting the statutory trigger for a required stockholder vote.”) (citations

omitted);

,

8 1 0 A . 2 d 3 5 1 , 3 7 0 , 3 7 1

85

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