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Are Intercreditor Agreements Now Going According to Plan?
Intercreditor agreements should add consensus and cohesion to the bankruptcy process. They provide a framework to align creditors with often directly conflicting interests, before those interests are tested under the duress of a restructuring or liquidation. And this opportunity for pre-restructuring alignment is of greater importance given today's active secondary loan market, which clears a path for the debtor's original relationship lenders to sell their interests should a restructuring loom. Distressed debt purchasers, on the other hand, may have different objectives that make them less willing to join forces with longer-term holders.
The desire to avoid the destructive nature of intercreditor disputes motivated the American Bar Association to produce a model first lien/second lien intercreditor agreement in 2010 (Model ICA). Unfortunately, the road to a quick and easy resolution of intercreditor issues has not yet been realized. Notwithstanding the call of judges and bar associations for greater precision in their drafting, these agreements continue to suffer from a lack of clarity. Moreover, they often fail to take heed of the likely path of a restructuring.
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.
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.
Compliance Officers: Recent Regulatory Guidance and Enforcement Actions and Mitigating the Risk of Personal Liability
This article explores legal developments over the past year that may impact compliance officer personal liability.