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Braving Tempestuous Times
In a decade marked by credit crises and financial fraud, lenders, factors, securitization entities and other funding sources that, in good faith, provide lease and accounts receivable financing to leasing companies and vendors must increasingly rely on the absolute, unconditional “hell-or-high-water” nature of the obligations they choose to finance. Hell-or-high-water protection has long been considered a commercial necessity to ensure the free flow of equipment lease financing and now, bolstered by recent changes to the Uniform Commercial Code (UCC), it has been extended to accounts receivable financing of goods and services.
Through this crucible of a faltering economy, combined with the growth of financing scams and Ponzi schemes (such as the infamous “Matrix Box” in the NorVergence cases), courts have had a fresh opportunity to examine the limits of enforcing hell-or-high-water obligations. This article discusses several recent court decisions that suggest practical strategies to assure wary funding sources that hell-or-high-water obligations will remain a viable route for navigating treacherous economic seas.
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.
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.
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.
Second Circuit Reinforces Bankruptcy Code Settlement Payment Safe Harbor
The Second Circuit affirmed the lower courts' judgment that a "transfer made … in connection with a securities contract … by a qualifying financial institution" was entitled "to the protection of ... §546 (e)'s safe harbor ...."