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Among the abuses of the bankruptcy system to be remedied by The Bankruptcy Abuse Prevention Consumer Protection Act of 2005 (BAPCPA) is that of serial filing. To confront this issue, BAPCPA has primarily revised ' 362 of the Bankruptcy Code by significantly amending ' 362(c)(3), and adding a new ' 362(c)(4). As of mid-April 2006, approximately 30 cases had been published interpreting these new provisions, making this area one of the more hotly litigated BAPCPA amendments to the Bankruptcy Code. The purpose of this article is to provide a brief overview of these new provisions, summarize the various issues examined by the courts to date, and provide some practical recommendations from the perspectives of debtor or creditor.
In the recent case of <i>In re Dornier Aviation (North America), Inc.,</i> the United States Court of Appeals for the Fourth Circuit held that ' 105(a) of the Bankruptcy Code provides the bankruptcy court with authority to recharacterize a claim from debt to equity. In upholding the recharacterization of a parent's $84 million claim against its wholly owned subsidiary, the Fourth Circuit made clear that form will not prevail over substance in the context of inter-company transactions. The Fourth Circuit failed, however, to provide any guidance on how inter-company transactions might be structured to avoid recharacterization under ' 105(a). This article presents one obvious, albeit not often utilized, solution: Parent corporations should collect debts due and owing from their subsidiaries to avoid the possibility of being relegated to the unenviable position of an equity investor in the event of a bankruptcy proceeding.
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The era of 'easy money' may be coming to an end soon, as there are signs of increasing economic pressure in certain sectors of the economy. At the same time, the passage of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), the principle provisions of which became effective in October 2005, is fundamentally changing certain aspects of the Chapter 11 process. Although no one is able to predict with certainty what will happen in the restructuring field in the near future, here are some of the signs that the bankruptcy field is about to undergo a substantial change.
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Recent rulings that may affect your practice.
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Do divorce lawyers have an obligation to disclose client confidences when it is in the best interests of the client's child to do so? The short answer of the rules of professional responsibility is 'no' because a 'yes' answer is deemed to be fundamentally inconsistent with the premises of the adversary system in which the divorce lawyer functions. The longer answer is that the rules encourage ' but do not require ' a divorce lawyer to counsel the client to authorize the disclosure because it is in the best interests of both parent and child.
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The Family Educational Rights and Privacy Act of 1974 (20 USC ' 1232g), more commonly referred to as FERPA, is a federal law that protects the privacy of student education records. FERPA applies to all schools that receive public funding. FERPA's terms contradict the commonly held belief that a non-custodial parent's right to a child's education record is defined only by the text of the stipulation of settlement or court order.
Battered women and men suffer not only at home, but often at their places of employment, where the stresses they are under may affect their work. These people might be prone to increased absenteeism due to emotional stress, injury or controlling domestic partners who do things like turn off the alarm clock, refuse at the last minute to watch the children or take the car when it's needed to get to the job. The abuser may also come to the workplace, or threaten to do so, requiring the employer to increase security, deal with ugly scenes, or worse. Consequently, it is not hard to see why a victim of domestic violence or emotional abuse is not going to be an employer's top choice to fill a position or get a promotion. However, even though the employment situation for victims of domestic abuse is not always optimum, there are some statutory and common-law protections available.