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Your Tenant Is in Default, But the Entity Does Not Exist
May 28, 2012
More often than you might think, landlords enter into leases with tenant-entities only to find later, when the tenant defaults under the lease, that the tenant-entity was never lawfully formed or did not exist at the time of entering into the lease.
In the Courts
May 27, 2012
An in-depth analysis of key decisions of note.
Business Crimes Hotline
May 27, 2012
Analysis of two separate decisions of note.
When Taking Proprietary Information Is Not a Crime
May 27, 2012
In back-to-back decisions, the Ninth and Second circuits interpreted three different federal statutes '' the CFAA, the NSPA, EEA '' in ways that narrowed federal prosecutors'' ability to charge former employees for stealing proprietary information from their companies.
Update: The IRS Whistleblower Program
May 27, 2012
This article continues last month's discusssion with a look at the IRS whislteblower program's success to date, as well as proposed improvements to the program.
The Fragile Fifth Amendment
May 27, 2012
When the contents of electronic devices are encrypted, must the owner facilitate the government's review by decrypting the data or supplying the password to do so? A look at recent rulings.
Asbestos Claims
May 27, 2012
Asbestos defendants that file for reorganization under the U.S. Bankruptcy Code and seek to establish a personal injury trust for the payment of claims may transfer their liability insurance recovery rights to the trust even if the insurance policies include provisions barring the transfer of such rights.
Court Reverses 'Ponzi-Like' Fraudulent Transfer Ruling
May 27, 2012
The Fifth Circuit recently reversed a district court's fraudulent transfer judgment based on a financially troubled entity's gift to a charity. <i>The American Cancer Society v. Cook</i>.
Issue-Specific Withdrawal of the Reference
May 27, 2012
This article considers the genesis, tendency and scope of the district courts' withdrawals of the reference in some of the more complex proceedings pending today.
Lehman Brothers' ADR Procedures for Resolving Its Derivative Contracts in Bankruptcy
May 27, 2012
Lehman Brothers' bankruptcy case was the largest and most complex Chapter 11 case in history. Here's an inside look.

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  • Private Equity Valuation: A Significant Decision
    Insiders (and others) in the private equity business are accustomed to seeing a good deal of discussion ' academic and trade ' on the question of the appropriate methods of valuing private equity positions and securities which are otherwise illiquid. An interesting recent decision in the Southern District has been brought to our attention. The case is <i>In Re Allied Capital Corp.</i>, CCH Fed. SEC L. Rep. 92411 (US DC, S.D.N.Y., Apr. 25, 2003). Judge Lynch's decision is well written, the Judge reviewing a motion to dismiss by a business development company, Allied Capital, against a strike suit claiming that Allied's method of valuing its portfolio failed adequately to account for i) conditions at the companies themselves and ii) market conditions. The complaint appears to be, as is often the case, slap dash, content to point out that Allied revalued some of its positions, marking them down for a variety of reasons, and the stock price went down - all this, in the view of plaintiff's counsel, amounting to violations of Rule 10b-5.
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