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Third Circuit Defines 'Received' for Section 503 (B)(9) Claims
For over a decade now, the Bankruptcy Code has granted a priority of payment with regard to creditor claims for goods received by the debtor in the 20 days before bankruptcy. The law is prosaic enough on its face: A creditor merely needs to demonstrate that the debtor “received” the goods within the prescribed pre-bankruptcy interval, and its claim attains priority as an administrative expense. 11 U.S.C. § 503(b)(9). Ah, but therein lies the rub.
Precisely what constitutes “received” by the debtor in this context? Does it mean actual physical custody of the goods? Or is the mere transfer of legal title sufficient to qualify for such improved status? Last year, we expounded upon a decision that denied administrative expense status to a claim because the district court held that “received” includes the passing of title. See Abatemarco & Sabino, Bankruptcy Code, International Trade Treaty Collide over Expense Status, October, 2016. Truth be told, this writer agreed with the outcome, albeit for somewhat different reasons. Indeed, aware that the lower court decision was being appealed, we urged clarification from a higher court.
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.