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Part One of this series discussed how the federal government is stepping up its aggressive enforcement of anti-money laundering/combating the financing of terrorism ('AML/CFT'). This second installment addresses action steps for leasing and financing businesses affected by the AML/CFT program.
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Any equipment leasing or finance company desiring to access the debt capital markets must quickly become adept at dealing with a unique feature of that world: the credit rating and its gatekeeper, the credit rating agency. Entering this realm can be a jolt for finance officers used to the relationship-friendly, competitive environment of commercial banks. Dominated by two monoliths, Standard & Poor's and Moody's, the rating agency process is steeped in the clinical analytics of credit modeling. Rating agencies are viewed by many as academic in perspective and, to some, remote and obscure in their approach.
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In August 2006 the U.S. Bankruptcy Appellate Panel of the Ninth Circuit rendered a decision in a case titled <i>In Re: Commercial Money Center, Inc.</i> (<i>Netbank, FSB v. Kipperman</i>), U.S. Bankruptcy Appellate Panel of the Ninth Circuit, BAP No. SC-05-1238-MoTB; Bk.No. 02-09721-H7; Adv. No. 03-90331-H7, holding that payment streams stripped from equipment leases are payment intangibles, not chattel paper, and thereby overturning the bankruptcy court decision. Accordingly, the assignment of the payment streams could be automatically perfected under '9-309(3) of Revised Article 9. Additionally, the court agreed with the bankruptcy court and held that the transactions in this case were loans, not sales, so there was no automatic perfection. Finally, the court held that there were unresolved factual and legal issues as to whether the lender had perfected its security interest in the leases by taking possession through a third-party agent, and therefore remanded the case for further proceedings.
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A Look at a recent Donnelly Act claim.
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It used to be that an employee desiring to steal $2 million from your company would have a hard time doing so unnoticed. Today, that employee can do so undetected while having a casual conversation with you in the office. Unfortunately, in the current environment, the legal system is not forgiving toward companies that take a more relaxed approach with respect to protecting their own sensitive information.
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On Sept. 26, the Employee Benefits Security Administration of the Department of Labor (department) issued proposed regulations implementing amendments to ' 404(c) of the Employee Retirement Income Securities Act of 1974, as amended (ERISA).(The proposed regulations are at 29 CFR ' 550.404c-5.) These amendments were made by ' 624 of the Pension Protection Act of 2006 (the act) and provide relief to fiduciaries of participant-directed individual account plans where, in the absence of investment directions from a participant, the plan invests such participant's assets in a 'qualified default investment alternative.'