As a result of the Seaboard Release (SEC, 2001) and the Thompson Memorandum, potential conflicts in representing both a corporation and its officers and executive employees have become more frequent. The corporation, in order to avoid prosecution and limit its exposure to civil damages, must promptly conduct an internal investigation and turn over the results of that investigation to the appropriate governmental agency as soon as possible. This may not be the best way to defend executives exposed to criminal liability.

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A white-collar criminal investigation, a business entity seeking to cooperate, and individual employees talking to the prosecutors ' all familiar scenarios to anyone experienced in federal criminal law. Recently, however, these elements combined to produce an unusual result: the suppression of the employees' statements to the government as involuntary under the Fifth Amendment. U.S. District Judge Lewis A. Kaplan issued this ruling in the KPMG tax shelter prosecution, finding that the prosecutors, through their pressure on KPMG, economically coerced the company's employees to speak with the government in violation of their privilege against self-incrimination. Once again, the government's overly aggressive interpretation of the Thompson Memo has come back to haunt it.

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Two months ago, the American Bar Association House of Delegates adopted a 'recommendation' stating opposition to prosecutors' and other enforcement officials' taking into consideration 'any of the following factors in making a determination of whether an organization has been cooperative in the context of a government investigation: 1) that the organization provided counsel to, or advanced, reimbursed or indemnified the legal fees and expenses of, an Employee; 2) that the organization entered into or continues to operate under a joint defense, information sharing and common interest agreement with an Employee or other represented party with whom the organization believes it has a common interest in defending against the investigation; 3) that the organization shared its records or other historical information relating to the matter under investigation with an Employee; or 4) that the organization chose to retain or otherwise declined to sanction an Employee who exercised his or her Fifth Amendment right against self-incrimination in response. This article discusses the recommendation and the events that led to it.

Many technology companies believe the current law on obviousness hinders product development by extending patent protection to insignificant advances. The Court of Appeals for the Federal Circuit ('CAFC') reconfigured the obviousness framework established by the Supreme Court to limit the subjectivity of obviousness determinations by adding a 'teaching-suggestion-motivation' test, which is at the heart of a case the Supreme Court has recently agreed to consider. In <i>Teleflex</i>, the CAFC applied the 'teaching-suggestion-motivation' test in vacating a lower court finding of obviousness. <i>Teleflex Inc. v. KSR Intern. Co.</i>, 119 Fed.Appx. 282 (Fed. Cir. 2005). Substantially unchecked to date, this will be the first full hearing on the obviousness doctrine in more than 30 years.

Recent rulings of importance.

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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.