Deferred Prosecution Agreements and Privileged Documents
October 30, 2007
XYZ Inc. settles a federal criminal investigation by signing a deferred prosecution agreement (DPA). Now its attorneys think the company and its privileged documents are safe so long as XYZ stays out of trouble. But have they closed the barn door after the horse has run away? A little-noticed holding by Judge Lewis A. Kaplan in the KPMG tax shelter case suggests that a DPA may open privileged documents to defendants in criminal trials and even to civil litigants.
Perfecting Lease Payment Streams
October 30, 2007
This article reviews the <i>In re Commercial Money Center</i> case and its practical implications, provides an overview of some proposed amendments to the UCC with respect to such problems, and discusses suggestions of how to protect clients in the post-<i>CMC</i> environment.
Defendants' Pretrial Access to Documents in White-Collar Prosecutions
October 30, 2007
Accused of withholding a DNA report favorable to the defendants in the Duke lacrosse case, Durham, NC, District Attorney Mike Nifong reached for an argument familiar to defense attorneys: Even if he didn't produce a report identifying exculpatory DNA results, he did produce documents containing those results ' among over a 1,000 pages of related documents produced before trial. Of course, the North Carolina Bar found that Nifong did more than simply bury favorable evidence in a document production. Assume, however, that he had produced exculpatory DNA results, and even a report explaining them, in thousands of pages of documents, but defense counsel didn't find them. Did he satisfy his disclosure obligations?
Company Interviews of Employees Suspected of Wrongdoing
October 30, 2007
Since Sarbanes-Oxley ('SOX') became law in 2002, companies have had a heightened interest in determining if there has been wrongdoing within their business. When a company has reason to believe that one or more employees may have engaged in practices that could expose it and them to civil lawsuits, regulatory actions or criminal charges, good business practice calls for the company to find out what occurred, who was involved, how extensive the conduct was, and how it happened. From the very beginning of this process, a particularly difficult issue is what employees interviewed in the company's investigation should be told about getting their own lawyers.
What Constitutes a Health Care Business Under 11 U.S.C. ' 333?
October 30, 2007
The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ('BAPCPA') was initially enacted to reform the Bankruptcy Code as it relates to health care businesses and to protect the ongoing quality of patient care being provided by such health care establishments during a bankruptcy proceeding. Specifically, this legislation added Section 333 to the United States Code Title 11, which requires the appointment of a patient care ombudsman ('PCO') in Chapters 7, 9 or 11 reorganization cases where the debtor is a 'health care business,' as defined by the Code, unless the court finds the appointment is not necessary to protect the health and well-being of the business' patients.
Foreclosure and Receivers in the Current Liquidity Crisis
October 30, 2007
Given the instability in the current real estate market and the significant rise in the number of borrowers defaulting on their mortgages, the topic of foreclosures, regardless of the type, will be the subject of many future discussions and articles. Just a quick review of popular business periodicals reveals the many forces working together to both increase the number of foreclosures and decrease property values. In this climate, many lenders will be assessing their options when it comes to foreclosing on delinquent borrowers.
