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12-Jan-2018 13:46

BMW also argued that the Payments were not subject to forfeiture under § 544 because German law governed the transaction and did not provide a state-law remedy for the trustee.[3]In ruling on BMW’s motion to dismiss, the court found the Payments to be extraterritorial in nature.

However, the court rejected BMW’s argument that the fraudulent transfer provisions of § 548 do not apply to extraterritorial transfers (i.e., those for which the “center of gravity” is outside the United States), concluding that § 548 applies to property everywhere in the world because any property recovered by a debtor or trustee becomes property of the estate under § 541 and the estate should have access to its property regardless of where it may be located.[4] After determining that the complaint sufficiently pleaded that Fisker did not receive reasonably equivalent value in the form of materials, services, or otherwise from BMW after making the Payments and that Fisker had been insolvent for several years prior to the Payments, the Court allowed the trustee’s § 548 claim to proceed in part.

I find no cognizable claim that any of the directors of Radio Shack, including Magnacca, breached his or her duty of loyalty.

It is possible that the directors may have breached their duty of care.

Thereafter, the court allowed the plaintiff to proceed with its fraudulent transfer claim against BMW, but reduced the amount at issue from approximately .5 million to 3,761.87 because the majority of the transfers at issue occurred outside the two-year fraudulent transfer period under 11 U. As a result, Fisker made payments to BMW in June, July, and December of 2011 and April of 2012 totaling ,579,798.87 (the “Payments”).

(collectively, “Fisker”), designed and manufactured plug-in electric hybrid cars.

Equally as important, the Court’s decision to allow the trustee’s unjust enrichment claim to proceed in the full amount of the Payments, while recognizing that recovery of the vast majority of the Payments under § 548 was barred, represents a broad expansion of the theories of alternative pleading and of potential liability for third parties outside the usual two-year look-back period for allegedly fraudulent transfers.

By equitably broadening the scope of alleged fraudulent transfers, the Court has now subjected many transfers to scrutiny that may not otherwise be at issue in a fraudulent transfer action.

On November 22, 2013, Fisker filed its Chapter 11 bankruptcy petition.[2] Under the plan, a liquidating trust was formed, which, among other things, initiated an adversary proceeding against BMW attempting to recover the Payments as alleged fraudulent transfers under § 544 and § 548 of the Bankruptcy Code and the allegedly applicable California or Delaware law.But, duty-of-care claims are exculpated by Radio Shack's charter.So, all claims against parties in their capacities as directors must be dismissed.The complaint also asserted a claim for unjust enrichment.

BMW opposed the trustee’s motion and argued that the Payments were not subject to § 548 because (i) the Payments were extraterritorial, occurring in Germany, not in the US, (ii) most of the Payments occurred more than two years prior to the debtor’s petition date, and (iii) the complaint failed to adequately allege Fisker’s insolvency.

First, Standard General and its chief investment officer, Soohyung Kim, caused Magnacca to be appointed to the board of American Apparel, a struggling affiliate of Standard General.



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