LJN Newsletters

In response to a controversial Web site that exposes the identities of criminal defendants who have agreed to cooperate with authorities, the federal judges on the Eastern District of Pennsylvania bench have adopted a plan designed to make it impossible for any visitor to the court's Web site to discern whether a defendant is cooperating. The new protocol, adopted last month, is a direct response to the Who's a Rat Web site (www.whosarat.com), and will result in a modification of the docketing of all sentencing and plea documents in all criminal cases.

Caution ' an employee of your company may go to work for the IRS. Well, not in the traditional way. In the Tax Relief and Health Care Act of 2006 ('the Act'), effective Oct. 20, 2006, Congress amended ' 7623 of the Internal Revenue Code, substantially enhancing the IRS's informant or whistleblower program.

The operators of MySpace and Facebook social networking sites assure their millions of subscribers that only designated 'friends' can read registrants' private postings. But do the postings stay private if the registrant becomes the plaintiff in an emotional distress case? Can the defendant get the texts of MySpace and Facebook messages to support a defense that the distress claim is bogus? And is the expectation of privacy by users of such sites higher than it is for customers of common e-mail providers such as Microsoft and Comcast?

Recent court decisions may force the Recording Industry Association of America ('RIAA') to re-evaluate its litigation tactics. In the past, RIAA members were able to file actions against the owners of Internet addresses if their sites were used by others to file share.

Who's doing what; who's going where.

While the market is swimming with innovative and highly leveraged financial transactions, and many parties are enjoying sizeable gains, some of those involved in these enterprises ultimately will become insolvent. A fraction of these insolvencies will result from fraudulent investment schemes perpetrated by multiple parties acting in concert for their mutual benefit. Innocent victims, including creditors and investors, will bear the financial brunt of the insolvencies, and will be eager to recover from all parties that participated in the fraud.

The Fourth Circuit, on June 15, 2007, affirmed the dismissal of a Chapter 11 reorganization petition filed by a tenant debtor in a commercial lease dispute. Maryland Port Administration v. Premier Automotive Services, Incorporated (In re Premier Automotive Services, Incorporated). As the Court of Appeals explained, the tenant had filed its Chapter 11 petition 'in order to forestall eviction on an obviously expired lease ' to prevent the [lessor] from evicting the debtor from the [lessor's] property,' seeking to tie up the landlord 'in endless, fruitless litigation.' According to the court, the Chapter 11 filing here 'demonstrate[s], unfortunately, how the good and useful ends of the bankruptcy process can be badly abused.'

Credit Lyonnais Bank Nederland, N.V. v. Pathe Communications Corp. stands for the proposition that directors and officers of a Delaware corporation that is either insolvent or in the 'zone' of insolvency owe fiduciary duties to creditors as well as stockholders. In essence, it provided a 'shield' to directors against shareholder suits alleging that directors breached their duties to shareholders by acting to protect creditors. Now, the Delaware Supreme Court may have "broken the shield."