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Beyond the Signed Agreement: Intercreditor Dynamics in Bankruptcy
When a creditor enters the realm of bankruptcy, lenders often find that the many detailed provisions of an extensively negotiated intercreditor agreement are no longer controlling. On the contrary, the intercreditor agreement may have little influence on the outcome of many critical matters that arise in bankruptcy. Questions regarding enforceability of bankruptcy-related waivers limit their effectiveness. Moreover, the exigent circumstances created by bankruptcy oftentimes mean that the written agreement is but one of many factors affecting outcome of intercreditor disputes in bankruptcy. Valuation, inter-facility claims trading, alignment of other claims and interests, among other things, further impact resolution of intercreditor issues. A considered strategy that accounts for all these various matters, coupled with flexible execution, is the key to maximizing position when the intercreditor relationship is subsumed by the bankruptcy of the borrower.
In anticipation of a bankruptcy proceeding, careful review of the particular terms of the intercreditor agreement is necessary to establish the parameters of the likely disputes, but the specific circumstances of the debtor should be incorporated in the strategies and responses that will affect the outcome of bankruptcy-related issues.
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.
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.
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.