Law.com Subscribers SAVE 30%
Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
Serving Two Masters: When 'Bankruptcy-Remote' Meets Public Policy
Structured financing transactions make extensive use of entities formed for the specific purpose of reducing the likelihood that assets will be involved in a potential bankruptcy proceeding. Known as “bankruptcy-remote entities,” or “BREs,” these entities are subject to structures and covenants in financing documents and their own formation documents, which are designed to reduce the likelihood that the BRE will file for bankruptcy protection.
One such common provision is a requirement that the BRE have an outside director or member whose vote is required for approval of any bankruptcy filing by the BRE. While a contractual provision prohibiting an entity from filing for bankruptcy protection has long been considered void as against public policy, recent cases evaluate situations where the debtor is not contractually prohibited from making a filing, but where a director or member of the debtor who is beholden to the creditor holds the ultimate power to veto a bankruptcy.
Courts are asked to consider these established financing structure variations in light of the public policy aspects of bankruptcy law and fiduciary duties imposed by corporate law. This article examines two recent cases, and suggests practices that lenders to BREs can use to reduce the risk of a debtor bankruptcy without compromising the policies underlying bankruptcy and corporate laws.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?