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Considerations of Examiner Appointments in Bankruptcy Actions
Examiner appointments in Chapter 11 bankruptcy cases are uncommon, and despite Judge Peter J. Walsh's statement that he had appointed an examiner only two or three times during his career as a bankruptcy judge, he recently ordered the appointment of an examiner in the case of In re DBSI, Inc., Case No. 08-12687 (Bankr. D. Del. Mar. 25, 2009). In granting the Idaho Department of Finance's motion, Judge Walsh found that the allegations of fraud against DBSI and some of its current officers and directors were substantial enough to warrant the appointment of an examiner. Relying upon a review of recent examiner cases, the authors of this article conclude that a court is most likely to appoint an examiner when the movant: 1) alleges substantial acts of fraud, especially securities fraud, by the debtor and its management team; 2) establishes a complex interrelationship among the debtor, its management, and non-debtor entities; and 3) has the support of the United States trustee (“Trustee”) and any other significant creditor groups.
The Four-Part Test of 11 U.S.C. ' 1104
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.