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As economic turmoil continues, many companies face erosion of revenues, pressure for cost containment, and diminished liquidity. Filing for bankruptcy protection is sometimes part of the solution. In-house counsel should, among other things, consider the potential impact of current economic pressures on financial controls and the risk of fraud during a restructuring, when headcount is reduced, morale is eroded, and risk mitigation can inadvertently take a back seat to the day-to-day focus of management.
A 2008 study by the Deloitte Forensic Center and Deloitte's Reorganization Services group found that companies filing for bankruptcy protection (“Bankrupt Companies”) are three times as likely as non-Bankrupt Companies to face enforcement action by the SEC for financial-statement fraud allegedly committed pre-petition. Conversely, companies that were the subject of SEC enforcement releases related to financial-statement fraud were more than twice as likely to file for bankruptcy protection than companies that were not.
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