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A Failure to Assume
In most Chapter 11 cases, the debtor (or trustee if one is appointed), either prior to or in connection with plan confirmation, will move to assume or reject its executory contracts, unexpired leases, or both (collectively “Executory Contracts”) pursuant to ' 365 of the Bankruptcy Code. This article discusses the “ride-through” doctrine, which courts have developed to resolve the ambiguity resulting from a debtor's failure to assume or reject an Executory Contract under ' 365 prior to plan confirmation. Under this doctrine, “executory contracts that are neither affirmatively assumed or rejected by the debtor under ' 365, pass through bankruptcy unaffected.” In re Hernandez, 287 B.R. 795, 799 (Bankr. D. Ariz. 2002); see also In re Polysat, Inc., 152 B.R. 886, 890 (Bankr. E.D. Pa. 1993).
This article will not deal with leases of non-residential real property because the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) amended ' 365(d)(4) and imposed an outside limit of 210 days for a debtor-lessee to assume or reject a pre-petition lease of non-residential real estate. Thus, under amended ' 365(d)(4), a non-residential real estate lease where the debtor is the lessee is deemed rejected if the debtor has neither assumed nor rejected it: a) within 120 days of the bankruptcy filing, subject to one 90-day nonconsensual extension by court order (additional extensions require the lessor's consent), or b) before plan confirmation, whichever is earlier. Accordingly, non-residential leases can no longer ride through a Chapter 11 bankruptcy case.
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
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Use of Deferred Prosecution Agreements In White Collar Investigations
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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.