In return, Magnacca allegedly guided Radio Shack into an ill-fated recapitalization transaction with Standard General and away from other alternatives that would have brought more value to the company. Then, they led him to believe that other opportunities awaited him.The most current financial information can be found in the Consolidated Financial Statements section of this website. Ray III was appointed Liquidation Trust Manager (“LTM”) on November 18, 2016. Ray served as Chief Counsel to the Trust from September 2015. Ray is Senior Managing Director of Greylock Partners, LLC. Ray has served in various capacities with respect to Chapter 11 bankruptcy estates. Ray served as Chief Restructuring Officer of Overseas Shipping Group and from 2014 to 2015, Chairman of the Board of Overseas Shipping Group. Ray has served as the principal officer of Nortel Networks, Inc. Ray served as the Chairman of the Restructuring Committee of the Board of GT Technologies. Ray was Chairman of the post confirmation Board of Enron Corporation and, from 2005 to 2009, President of post confirmation Enron Corporation.Matt Doheny has over twenty years of experience in the distressed investing, turnaround and restructuring industry. Weber has over 35 years of experience in litigation support and expert witness work, restructuring consulting (both debtor and creditor) and auditing. Weber began his career at Price Waterhouse and served in a variety of positions and practices (including a 2-year foreign tour), leaving as a partner after 22 years. Second, why would the independent directors knowingly sacrifice the company so that Magnacca could achieve his personal agenda? One might say that it is not the plaintiff's job to explain the personal motivations of men and women; that the facts speak for themselves.
Defendants moved to dismiss the complaint or for a more definite statement. We may affirm dismissal on any basis supported by the Rule 12(b)(6) record. It argues that it is attempting to assert a breach of fiduciary duties owed to Torch but fails to allege necessary elements of such a claim-specifically, but not limited to, injury to Torch. Under the Plan, the court's confirmation order, and the trust agreement, Bridge Associates was to distribute proceeds of the Trust's assets according to the Plan, which allocated the proceeds of D&O claims to debtor's unsecured creditors by pro rata share. Yet, at no point did plaintiff move the district court for leave to amend its amended complaint to allege a claim showing injury to Torch.
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The district court dismissed plaintiff's amended complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure on the ground that the amended complaint's allegations of injury to the creditors of Torch Offshore, Inc.; Torch Offshore, L. The complaint alleged that the Directors breached fiduciary duties owed to Torch's creditors when Torch entered the zone of insolvency and after it became insolvent. (In re Katrina Canal Breaches Litig.), 495 F.3d 191, 205 (5th Cir.2007). The plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Although plaintiff has standing, it fails to state a claim for which the court may grant relief. The court's confirmation order and the trust agreement named Bridge Associates as the administrator and trustee of the Trust. Ch.2004) (“In the Malone context, a plaintiff had to prove that the directors ‘knowingly disseminate[d] false information.’ This level of proof is similar to, but even more stringent than, the level of scienter required for common law fraud.” (alternation in original)); A. Typically, we review the district court's decision not to grant leave to amend for abuse of discretion. Liberty Life Assurance Co., 394 F.3d 262, 268 (5th Cir.2004). The Plan Administrator and Trustee is expressly authorized to settle and compromise ․ the D&O Claims without further Bankruptcy Court approval․Liquidating Trust Agreement at 6, In re Torch Offshore, Inc., Nos.
The Plan defined D&O claims as “any claims arising prior to January 7, 2005 [the date Torch filed its chapter 11 petition] and recoveries against the Debtors' directors, officers, and other principals which are related to the Debtors' D&O insurance.” The parties do not dispute that the breach of fiduciary duty claims at issue on appeal are D&O claims. Procedural Background On January 5, 2007, Bridge Associates filed a complaint on behalf of the Trust against Torch's former directors and officers (the “Directors”). When considering a Rule 12(b)(6) motion, we “accept[ ] all well-pleaded facts [of the complaint] as true, viewing them in the light most favorable to the plaintiff.” In re Katrina Canal Breaches Litig., 495 F.3d at 205 (quotation marks and citation omitted). As the trustee, Bridge Associates may bring D&O claims that were part of debtor's estate on behalf of the Trust; it need not allege a derivative suit based on either shareholder or creditor derivative standing. 595 (1946) (“The claim sought to be enforced in a derivative suit may be an important asset of the estate.”); La. To administer the estate and the Trust, the Plan provided for the appointment of a Plan Administrator and Trustee, which was granted the “rights and powers of a debtor-in-possession under Section 1107 of the Bankruptcy Code,” including the duty “to prosecute any D&O Claims and distribute the proceeds of such claims,” and other rights and powers set forth in the Liquidating Trust Agreement. Reaching this conclusion, we refrain from wading into the parties' contentions regarding the district court's other bases for dismissal. Remand to Amend Plaintiff asks us to remand to allow it to amend its amended complaint to allege injury to Torch. The trust agreement likewise authorized trustee action: The Plan Administrator and Trustee shall be empowered to and ․ may, [sic] take all appropriate action with respect to the Liquidating Trust Assets consistent with the purpose of the Liquidating Trust, including, without limitation, the filing, prosecution (including objections), estimation, settlement or other resolution of ․ D&O Claims ․ and oversee the management of any Liquidating Trust Assets. In an attempt to comply with Rule 23.1 of the Federal Rules of Civil Procedure, plaintiff alleged that it “was neither a shareholder or nor [sic] a creditor of Torch at the time the transactions complained of occurred but represents the interests of the shareholders and creditors of [Torch]”; that “[w]ritten demand was made upon the Directors of Torch by counsel for the Official Committee of Unsecured Creditors of Torch”; and that “[p]laintiff has not made demand upon the Directors nor shareholders of Torch to undertake the prosecution of this action because (i) the Plan and the Confirmation Order have vested the right to bring the action in the plaintiff; (ii) there are no Directors of Torch; (iii) the shareholders can take no action to force the Directors to sue, there being no directors; and (iv) plaintiff is the only legal person who can bring this action.” (See Am.