Randall Klein's Alert, "Lender Liability Management: Contractual Traps for Minority Lenders or Fraudulent Transfer Risk for the Majority?," has been published in the Nov. 20, 2022, edition of The Creditor Corner, a weekly publication containing curated content from the Creditor Rights Coalition.
In a previous Alert written by Mr. Klein, he suggested restoration of the good faith doctrine to enable courts to disallow reverse engineering of credit agreements if done in bad faith. This current alert published in The Creditor Corner focuses on the Boardriders Court decision denying the motion to dismiss the good faith claim (following similar results in NYDJ and Serta). Fundamentally, writes Mr. Klein, "the 'good faith' doctrine implies a duty to refrain from destroying the essence of the ratable contract among lenders. But, there is another under-utilized tool that curtails documentation mischief: voidable transaction statutes a/k/a fraudulent transfer statutes."