Law.com Subscribers SAVE 30%
Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
Court Holds That Deposits Would Be Hypothetical
A bankruptcy trustee may recover for the bankruptcy estate so-called “preferential transfers” – certain payments made by the debtor within 90 days before the commencement of a bankruptcy case. To prevail, the trustee must show (among other things) that the creditor received a greater amount as a result of the transfer in question than such creditor would have received in a hypothetical liquidation under Chapter 7, had the challenged transfer not occurred.
This test, set out in Section 547(b)(5) of the Bankruptcy Code, is referred to as the “greater amount” test. In Schoenmann v. Bank of the West (In re Tenderloin Health), 849 F.3d 1231 (9th Cir. 2017), the U.S. Court of Appeals for the Ninth Circuit considered whether a bankruptcy court may account for hypothetical preference actions within a hypothetical Chapter 7 liquidation when determining whether a debt payment made by a debtor to its secured lender meets the “greater amount” test, such that it could be avoided by the trustee. Answering in the affirmative, the court held that bankruptcy courts may permissibly engage in such “hypotheticals within hypotheticals” so long as the inquiry is factually warranted and is supported by appropriate evidence, and provided further that the hypothetical action would not contravene any other provision of the Bankruptcy Code.
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.