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Future Avoidance Litigation: A Debtor's Obligation to Preserve Electronic Data
Part Two of a Two-Part Article
As experienced leasing and finance professionals know, when a company suffers severe financial distress and faces the prospect of imminent bankruptcy, its record-keeping procedures can break down, even if they were previously adequate. Indeed, a company faced with abrupt layoffs or departures may find that employees have misplaced, removed, or even intentionally destroyed important documents. This problem can be particularly acute with respect to corporate information maintained exclusively in an electronic format, such as e-mail communications. Notwithstanding the efforts and directives of a company's executives and counsel, such data may be lost as e-mail folders are purged, master tapes are overwritten, computers are sold or discarded, network servers are shut down, information technology personnel are given their walking papers, and offices are shuttered. Any destruction or loss of important documents not only complicates the general administration of a bankruptcy estate, but also can potentially lead to significant adverse consequences in future litigation, including actions to recover avoidable transfers.
Despite these risks, collection and preservation of large amounts of electronic data in anticipation of hypothetical avoidance litigation that will most likely take place years in the future ' if ever ' is hardly a company's, or counsel's, top priority at the time of a bankruptcy filing, particularly because such activities can require the expenditure of significant resources. Nevertheless, to prevent future litigation difficulties from arising in connection with the prosecution of avoidance actions, it is important for a practitioner advising a company heading into or newly in bankruptcy to begin to preserve all electronic data immediately.
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.
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.
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.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.