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How to Extinguish a Lessee's Possessory Interest
The ability of a trustee to sell bankruptcy estate assets free and clear of competing interests in the property has long been recognized as one of the most important advantages of a bankruptcy filing as a vehicle for restructuring a debtor's balance sheet and generating value. Still, section 363(f) of the Bankruptcy Code, which delineates the circumstances under which an asset can be sold free and clear of 'any interest in such property,' has generated a fair amount of controversy. This is so because the statute itself does not define 'interest.'
Although generally acknowledged to encompass liens and security interests, section 363(f)'s scope would appear to be much broader, based both upon the language of the statute and its underlying purpose. So much so, in fact, that it has even been interpreted to permit sales free and clear of claims (eg, successor liability) and in rem property interests (such as covenants and easements) that are generally inalienable under common law. Broadly applied, section 363(f) also arguably conflicts with certain other provisions of the Bankruptcy Code. How best to resolve this conflict in a way that preserves the integrity of Bankruptcy Code by harmonizing its provisions was the subject of a case of apparent first impression in the Circuit Courts of Appeal. In Precision Industries, Inc. v. Qualitech Steel SBQ, LLC (In re Qualitech Steel Corp.), 2003 WL 1918405 (7th Cir. Apr. 23, 2003), the Seventh Circuit ruled that a court order approving the sale of real property under section 363(f) extinguished a tenant's possessory rights in the property despite the protection afforded to non-debtor lessees under section 365(h)(1) of the Bankruptcy Code.
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.
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.
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.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.