I have extensive experience negotiating, trading and restructuring syndicated loans, including running the sell-side distressed desk at Citigroup just as the open market purchase exception to pro rata distribution began being commonly inserted into credit agreements. I am also generally conversant about definitions of “market,†“open,†and “open market,†and I am thoroughly familiar with arguments made in Serta (in NY and in the bankruptcy court), Trimark and Boardriders. As a syndicated loan “market†participant – and aware that I am begging the question by defining myself as such – I am surprised that litigants don’t laser focus on what…

In my experience, independent directors contribute essential governance and restructuring proficiency to companies contemplating in-court restructuring or out-of-court liability management. They often are the only non-paralyzed directors able to drive board meetings and corporate actions, reassure management, hold off sponsors and creditors, evaluate advice, and control advisors. In addition to stabilizing the company and steering the internal restructuring process, a skilled independent director promptly will seek to improve likely-deteriorated communication with creditors or minority interest holders.