Recharacterization
October 30, 2006
In the recent case of <i>In re Dornier Aviation (North America), Inc.,</i> the United States Court of Appeals for the Fourth Circuit held that ' 105(a) of the Bankruptcy Code provides the bankruptcy court with authority to recharacterize a claim from debt to equity. In upholding the recharacterization of a parent's $84 million claim against its wholly owned subsidiary, the Fourth Circuit made clear that form will not prevail over substance in the context of inter-company transactions. The Fourth Circuit failed, however, to provide any guidance on how inter-company transactions might be structured to avoid recharacterization under ' 105(a). This article presents one obvious, albeit not often utilized, solution: Parent corporations should collect debts due and owing from their subsidiaries to avoid the possibility of being relegated to the unenviable position of an equity investor in the event of a bankruptcy proceeding.
Recent Bankruptcy Trends
October 30, 2006
The era of 'easy money' may be coming to an end soon, as there are signs of increasing economic pressure in certain sectors of the economy. At the same time, the passage of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), the principle provisions of which became effective in October 2005, is fundamentally changing certain aspects of the Chapter 11 process. Although no one is able to predict with certainty what will happen in the restructuring field in the near future, here are some of the signs that the bankruptcy field is about to undergo a substantial change.
Patent Strategy Questions Raised By the eBay Decision
October 27, 2006
The effect of the Supreme Court's May 2006 opinion in <i>eBay v. MercExchange</i> is already visible in the world of intellectual property litigation. A handful of subsequent district court opinions relating to damages and permanent injunctive relief for patent infringement have been handed down with outcomes substantially outside of what would have normally been expected less than even a year ago, using the <i>eBay</i> decision as precedent. Although the true and long-lasting effect of this decision on litigation remains to be seen, its directional influence is clear. However, what is unclear is the effect that <i>eBay</i> will have on real-world intellectual property management and investment. The appropriate manner in which to react to these recent changes in the litigation realm is currently an area of much discussion by corporate IP departments, patent licensing and enforcement companies (P-LECs) and financiers.
<b>Online Exclusive:</b> Dewey Ballantine and Orrick Set to Merge
October 25, 2006
New York's Dewey Ballantine and San Francisco's Orrick, Herrington & Sutcliffe have taken another step toward completing a merger. According to a statement released Wednesday morning, the management and executive committees at both firms announced to their respective partners that they intend to recommend approving the combination. A full partnership vote at both firms is expected before the end of the year.
The Human Side of Data Security: The Critical Role of Employee Controls
October 19, 2006
As headlines continue to report data security breaches at an alarming rate, discussion often focuses on the need for enhanced technical controls, such as two-factor authentication and encryption, to protect sensitive, personally identifiable information. The role of the company employee, both as the cause of, and the first line of defense against, security breaches is often lost in the analysis. Yet developing law is increasingly requiring administrative or procedural controls, particularly those directed at employees, as a component of a legally compliant security program.
Lessons Learned: Issues Exposed in the Aftermath of the Hewlett-Packard Debacle
October 19, 2006
On Sept. 5, 2006, <i>Newsweek</i> published a story about Hewlett-Packard's Chairman Patricia Dunn's use of a private investigation firm to locate the source of leaks of confidential corporate information. As the story unfolded, the public learned the following: After confidential information appeared in news publications in 2005, certain officers and certain members of the board of directors of Hewlett-Packard ('HP') authorized the launch of two investigations, the first in 2005, and the next in 2006, to locate the source of the information leaks. The basis for the investigations was that the information leaked to the press was known only to board members. Certain officers and directors collectively comprised the 'HP investigation team' in the secret investigation of the leaks to the media. In devising its plan, the HP investigation team sought the assistance of a top investigator, Ron DeLia, head of Security OutSourcing Solutions, Inc. ('SOS'), with whom Hewlett-Packard previously had worked on unrelated matters. DeLia allegedly encouraged the HP investigation team to use pretexting or 'social engineering' to obtain private cell phone and phone records of certain targeted individuals, among other things.
<b>Online Exclusive:</b> Security Breach Class Action Thrown Out of U.S. District Court
October 16, 2006
A decision by a U.S. district court during the week of Oct. 9, 2006 potentially limits the scope of class action complaints that can be filed in the wake of electronic security breaches of personally identifying information. Judge William Wilson of the U.S. District Court for the Eastern District of Arkansas threw out a class action lawsuit filed against database operator Acxiom on the grounds that the plaintiff could not show actual harm from the breach.
