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Secured Transactions: The Transfer of Security Interests
Much has been written about the attachment and perfection of security interests. Less attention has been paid to how those liens, once perfected, can be transferred to other creditors. Transfers of security interests can occur, for example, in connection with the transfer of debt secured by liens or with the substitution of a secured party. (Note, a substitution of secured parties may occur, for example, when one collateral agent is succeeded by another. U.C.C. ' 9-207(c)(3) also permits secured parties to repledge collateral separate from the debt, but discussion of such procedures is beyond the scope of this article.) Ease of transferability of perfected security interests is critical to ensuring access to capital in financing transactions, especially in securitizations. The assignee of a security interest wants to succeed to both the assignor's perfected lien and the priority of that lien. (Note, technically, the rules discussed herein apply with respect to assignments by the assignor's predecessors in interest, in the case of multiple assignments. For the sake of clarity, however, we refer only to the immediate assignor, not its predecessors in interest.) Failure of an assignment to achieve either of these goals could result in a forfeiture to junior secured parties or the debtor's bankruptcy estate.
Article 9 of the Uniform Commercial Code, recognizing the importance of facilitating transfers of liens, imposes minimal requirements on assignments of security interests perfected by the filing of financing statements, or possession or control. However, when it comes to Article 9 collateral subject to federal or other state laws, such as certain mobile goods and intellectual property, the UCC often defers to such federal or state regimes. See U.C.C. ' 9-311(a). The intersection between the UCC and these other laws is not always seamless, as illustrated by the recent decision of a Texas bankruptcy court in Clark Contracting Services Inc. v. Wells Fargo Equipment Finance (In Re: Clark Contracting Services Inc. 299 B.R. 789 (Bankr. W.D. Tex 2008)). That lack of seamlessness can disrupt commercial and consumer markets significantly.
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.
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.
CLE Shouldn't Be the Only Mandatory Training for Attorneys
Each stage of an attorney's career offers opportunities for a curriculum that addresses both the individual's and the firm's need to drive success.
Discovery of Claim Construction and Infringement Analysis May be Compelled Prior to a Markman Hearing
A defendant in a patent infringement suit may, during discovery and prior to a <i>Markman</i> hearing, compel the plaintiff to produce claim charts, claim constructions, and element-by-element infringement analyses.