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Navigating the Bankruptcy Court's Power to Modify A Secured Creditor's Lien
As a borrower approaches bankruptcy, secured creditors often believe that their existing liens and collateral packages will be respected by the bankruptcy court, absent a basis to challenge priority, perfection or some misconduct to justify equitable subordination. On the contrary, bankruptcy courts have the power to modify the scope of validly perfected liens. This article focuses on the impact of section 552 of the Bankruptcy Code, which addresses the effect of a bankruptcy filing on property acquired by the debtor after the filing of the bankruptcy case (referred to as “after-acquired property”) and proceeds of pre-bankruptcy collateral.
The extent of a secured creditor's lien on collateral is critical to determining a host of secured creditor rights, including: 1) the extent of credit bid rights for a sale of collateral under section 363 of the Bankruptcy Code because a secured creditor can only credit bid on its collateral; 2) the entitlement to post-petition interest because only an over-secured creditor is entitled to post-petition interest under section 506(b) of the Bankruptcy Code; 3) the entitlement to “adequate protection”; and 4) the allocation of value in a sale and plan context.
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.