Foreign Debtors in Chapter 11
September 25, 2003
Last month's article concluded with 'Surviving a Motion to Dismiss or Suspend,' which discussed the exact boundaries of international comity, and explained that these boundaries are not clear. Therefore, a court's decision on a motion to dismiss or suspend a non-U.S. debtor's bankruptcy case under section 305(a)(2) (which invokes the 304(c) factors) will depend heavily on the case's specific facts.
Test Your Expertise ' DIP Financing
September 25, 2003
For the reader who has been involved in more debtor-in-possession(DIP) financings than he or she can remember, please treat this article as the opportunity to impress yourself with just how much you know about it. Check off each category if you can truthfully say 'I knew that!' A sum of eight or more checks makes you a big dipper.
In the Courts
September 24, 2003
Analyses of the latest rulings of importance to your practice.
Proactive Fraud Prevention
September 24, 2003
<b><i>Part One of a Two-Part Article</i></b> Way back in the 80s, companies in the U.S. Defense industry determined that it was in their best interests to band together and develop the Defense Industry Initiatives as a method of policing themselves during a time when their industry was fraught with fraud and corruption. As an aftermath, ethics and compliance programs have been developed and implemented by the majority of U.S. companies. To further entice companies to establish an effective and proactive program designed to detect and, to the extent possible, prevent violations of law The Federal Sentencing Guidelines for Organizations, passed in late 1991, rewards these companies with relief when sentenced for violations of law.
'Theft or Bribery': The Circuit Split Over the Federal Nexus Element
September 24, 2003
When federal prosecutors encounter corrupt conduct by a state or local official, they may reach for a potentially useful tool ' Congress's attempt to prevent theft or bribery 'concerning programs receiving Federal funds,' 18 U.S.C. ' 666. In applying this statute, however, a federal prosecutor's reach must not exceed Constitutional limits on what Congress may grasp. Defining those limits has proved particularly challenging in recent years, as three circuits have inferred different Constitutional limits on ' 666's enforcement.
E-mail: The Prosecutor's New Best Friend
September 24, 2003
Over the past 10 years, e-mail has replaced the telephone as the favored method of communication within Fortune 500 companies. The typical employee might send or receive dozens of e-mails per day, with the amount of e-mail traffic growing exponentially the higher up the employee sits on the corporate ladder. In a large company, the CEO might receive hundreds of e-mails daily, leaving to an assistant the task of 'screening' them. This explosive growth in e-mail has not been lost on prosecutors. In case after case, prosecutors are securing convictions with carelessly written e-mail.
Lien Creation and Lien Perfection: What's the Difference?
September 23, 2003
It is generally understood that materialmen, contractors, subcontractors and others (collectively called 'contractors') who perform labor or furnish materials on construction projects are entitled under state law to assert a mechanics' lien against real property for the value of the labor or materials they provide. What is less clear is the effect of a bankruptcy petition that is filed before the contractor has taken the necessary steps to create or perfect its rights.
Sigh of Relief: Derivative Actions Safe for Now
September 23, 2003
Much to the relief of many in the Third Circuit, its long-awaited en banc ruling in the Official Committee of Unsecured Creditors of <i>Cybergenics Corp. v. Chinery</i>, (<i>en banc</i>) No. 01-3805 (May 29, 2003) disagreed with the decision of one of its panels and upheld the right of parties other than a debtor or trustee to pursue avoidance actions under the Bankruptcy Code on a derivative basis. In doing so, the court supported the well-established practice allowing these derivative actions, and eschewed a slavish plain-language interpretation of Section 544(b) in favor of a broader, multi-section reading.
THE LEASING HOTLINE
September 22, 2003
Highlights of the latest commercial leasing cases from around the country.
