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The Intent of Section 546(e)
On Dec. 1, 2016, Bankruptcy Judge Michael J. Kaplan, in Christophersen v. Pahel (In re TVGA Engineering, Surveying, P.C.), 14-1104 (K) (Bankr. W.D.N.Y. Dec. 1, 2016), held that when a private company repurchases stock from a shareholder, and the payments were made “by” the company “to” the shareholder, through a bank, those payments are not protected by Bankruptcy Code § 546(e)'s safe harbor defense because its application “cannot be permitted to turn upon the use of a bank.” In re TVGA Engineering, Surveying, P.C., 14-1104 (K) p.5 (Bankr. W.D.N.Y. Dec. 1, 2016).
Judge Kaplan relied on legislative intent to find that a transaction which potentially falls within the safe harbor protections of 546(e) should not be afforded the benefits of the safe harbor defense because it is between private parties, is truly “by” the debtor and “to” the transferor, merely uses a financial institution like cash and, perhaps most important, if reversed, would not likely “seriously upset the securities market's ability to function.”
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.
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.