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One of the most difficult conversations a bankruptcy lawyer can have with a client is explaining why it has been sued for the recovery of money received pre-petition from a debtor for services rendered or goods supplied. We often hear the same incredulous mantras: "But the [debtor] owed me the money ... for a long time." "We helped stave off bankruptcy because we extended the payment terms." Often these comments are made to the trustee or debtor who commenced the preference suit, before the creditor consults its attorney. The client believes the suit is a big misunderstanding because the payments it received were on account of a real debt and does not understand the admissions contained in its statements.
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Recent rulings of importance to you and your practice.
The Supreme Court on June 29, for the second time in 2 years, rebuffed another effort by Congress to restrict minors' access to adult material on the Internet.
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The U.S. Supreme Court held on June 14 that the Sherman Anti-Trust and Clayton Acts cannot be invoked by foreign individuals or entities to redress injuries suffered due to anti-competitive conduct when the price-fixing conduct complained of adversely affects customers inside and outside the United States, but the adverse foreign effect is independent of any adverse domestic effect.
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Widespread use of the Internet is barely a decade old, and already its use and abuse have increased dramatically. While the Web provides companies with new outlets for their products, it also provides a larger outlet for rogue entities to harm the consumer and damage manufacturers' reputations. Indeed, the Internet has created an opportunity for a whole new class of fraudulent activity, with rampant identity theft the best known. In the context of drug outlets, if a purchaser buys his or her prescription from a "rogue" pharmaceutical site, that consumer may be buying expired, substandard, contaminated, counterfeited and, in some cases, unsafe products. The lack of medical oversight, which can result in administration of incorrect dosages, wrong or contra-indicated drugs, or medication without adequate directions for use are among the concerns to be addressed as we enter this new world of Internet pharmacies. Part One of a Two-Part Article.
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Given the central role of computer technology in our personal and professional lives, discovery requests for electronically stored information have become commonplace. The costs associated with discovery frequently escalate when the information sought is stored electronically, because retrieval is often more complicated and nuanced than the production of hard copies of documents. Not surprisingly, the disclosure and production of electronically stored information is often the subject of discovery disputes.
In the first ruling applying the whistleblower protections of the Sarbanes-Oxley Act of 2002, 18 U.S.C. ' 1514A, an Administrative Law Judge (ALJ) ordered a bank holding company to rehire its former Chief Financial Officer (CFO), after finding that the company fired the CFO in retaliation for reporting alleged accounting misconduct to the company's Chief Executive Officer (CEO), outside auditors, and others.
The Sarbanes-Oxley Act (SOX) responded to well-publicized allegations of securities fraud. Its commandments about financial and internal control certifications, audit committees, auditor independence and the like expressly target publicly traded corporations. Yet much has been written about the "inevitable" spillover of SOX-type obligations onto not-for-profit organizations, especially in the health care sector. As a result, not-for-profit CEOs, compliance officers and counsel have practical questions.
