In bankruptcy litigation, the line between direct and derivative claims may be a thin one, and courts are often entrusted with the task of determining whether the claims creditors set forth are actually derivative of claims owned by the bankruptcy estate. Companies entering into bankruptcy proceedings have the option of creating litigation trusts, which are authorized to pursue any claims the bankruptcy estate may own. A release of claims is often part of any settlement agreement, and such an agreement combined with the ownership of claims by the bankruptcy estate, often controlled through a litigation trust, can leave defrauded investors out in the cold with no means to pursue their claims. With the growing use and power of litigation trusts, investors, especially those of the distressed variety, should be forewarned that they may be barred from bringing certain claims because those claims may belong to the bankruptcy estate and are properly brought by the estate or trustee.
Recent cases indicate that certain claims, which investors wish to bring, may be deemed derivative of those belonging to the bankruptcy estate. Particularly, in In re SemCrude, the U.S. Court of Appeals for the Third Circuit found that the claims of breach of fiduciary duty, negligent misrepresentation, and fraud set forth by limited partners against the co-founder and former president and CEO of SemCrude L.P. were derivative of claims held by SemCrude’s litigation trust because they could not demonstrate any additional loss they experienced as compared to that of the corporation. Using Oklahoma state law, the Third Circuit determined that the plaintiffs would need to establish that they “sustained any loss in addition to the loss sustained by the corporation” in order for the court to hear their claims. If an investor can demonstrate this sort of additional loss, that would indicate that he has his own direct claims that he may properly bring before the court. Without such a demonstration, an investor lacks standing to bring her claim.