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District Court Recognizes Texas Legislation in Overturning Clark Contracting Decision
As reported in the September 2009 edition of LJN's Equipment Leasing Newsletter (“Texas Legislature Passes Certificate of Title Bill Negating Effect of Clark Contracting Decision,” Michael D. Jewesson), Senate Bill 1592, S.B.1592, 81st Leg., Reg. Sess. (Tex. 2009) (“SB1592″) was signed into law by Texas Gov. Rick Perry on June 19, 2009, thereby negating a decision handed down by a bankruptcy court in the Western District of Texas in late 2008 relating to the perfected status of an assignee lender on a loan purportedly secured by six equipment trucks. Clark Contracting Serv., Inc. v. Wells Fargo Equip. Fin. (In re Clark Contracting Serv., Inc.) 399 B.R. 789 (Bankr. W.D. Tex. 2008).
In Clark Contracting, the lender, Wells Fargo, in accordance with standard industry practice, did not apply for new certificates of title to reflect itself as the new lienholder after CIT (the original lender) assigned the loan and the related lien in the trucks to Wells Fargo. Instead, Wells Fargo relied on permissive language in the Texas Certificate of Title Act (“TCTA”) (TEX. TRANSP. CODE ANN. ” 501.001-501.159 (2007)) and commentary to Chapter 9 of the Texas Uniform Commercial Code that indicated that re-titling in such circumstances was not necessary to transfer the perfected status of the assignor lienholder to its assignee. The implications of the bankruptcy court's decision to render Wells Fargo unperfected extended far beyond the parties to the Clark Contracting case to cast doubt upon the perfected status of other secured parties in Texas motor vehicles and other titled assets that did not customarily re-title upon assignment.
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.
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.