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When Is Mediation Appropriate Pursuant to Bankruptcy Code Section 327(a)?
Mediation of a bankruptcy dispute takes place outside the presence of the judge before whom the case is pending. There is usually no direct communication between the mediator and the presiding judge before, during or after the mediation. Accordingly, with the utilization of mediation as a dispute resolution tool in bankruptcy cases becoming increasingly common, it is important that courts remain vigilant in protecting the integrity of the mediation process. As the U.S. Court of Appeals for the Second Circuit once famously stated in another context, “[t]he conduct of bankruptcy proceedings not only should be right but must seem right.” In re Haupt, 361 F.2d 164, 168 (2d Cir. 1966).
The decision of the court in In re Cody Smith, 524 B.R. 689 (Bankr. S.D.Tex. 2015), highlights the importance of ensuring that bankruptcy mediations are conducted with sufficient judicial oversight, and it demonstrates the appropriateness of evaluating whether a particular case is suitable for mediation before mediation is ordered. Smith discusses the risk of at least an appearance of favoritism that is posed where the proposed mediator is a former bankruptcy judge. Unfortunately, that court's holding that a mediator is a professional person whose employment must be approved by a bankruptcy court pursuant to section 327(a) of the Bankruptcy Code leaves the misleading impression that a mediator is employed by just one side involved in the dispute, a trustee or debtor, and is not a neutral third party working to assist all parties in reaching a consensual resolution of their dispute
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.