Ruling: A Download Is Not a Performance
June 28, 2007
If a music file is downloaded to a computer, and no one is there to play it, does it constitute a performance? This is not some question from a digital-age freshman philosophy seminar ' it was the legal issue recently facing Judge William C. Connor in the U.S. District Court of the Southern District of New York in <i>United States v. American Society of Composers, Authors and Publishers ('ASCAP')</i>.
Anti-Suit Injunctions: Is the Best Defense a Strong Offense?
June 28, 2007
In a case of significance to the secondary loan and distressed claim market, a North Carolina state court has entered an 'anti- suit injunction' barring a group of secondary, secured debt holders (the 'Fund Defendants'), from commencing any actions against Wachovia Bank. The case, <i>Wachovia Bank, NA and Wachovia Capital Partners, LLC v. Harbinger Capital Partners, et al.</i>, Civ. Action No. 07-CVS-5097 is pending in the General Court of Justice, Superior Court Division (Mecklenburg, NC) (the 'State Court Anti-Suit Action'), but its parties and the underlying facts arise from the Chapter 11 case of <i>In re Le-Nature, Inc.</i> pending in U.S. Bankruptcy Court, Western District of Pennsylvania (the 'Bankruptcy Case').
Redemption Payments Salvaged Prior to the Collapse of Ponzi Schemes
June 27, 2007
What can be worse than crushed expectations? Consider the following: An investor's money was invested with a hedge fund that turned out to be a Ponzi scheme. In a stroke of luck, the investor avoided a huge loss by redeeming his investment and gains prior to the collapse of the crooked company. Now, the trustee of the bankrupt hedge fund wants the money back, claiming that the transfer was fraudulent under ' 548 of the Bankruptcy Code and the N.Y. Fraudulent Conveyance law (New York Debtor & Creditor Law '' 271-276). Is there a quick way out of this nightmarish scenario? No, according to <i>Bayou Superfund LLC v. WAM Long/Short Fund II. L.P. et al. (In re Bayou Group, LLC)</i>, 2007 WL 582530 (Bankr.S.D.N.Y.)
Attorneys' Fees Preserved In Bankruptcy Cases
June 27, 2007
This article discusses the development of the <i>Fobian</i> rule and other courts' treatment of it. The article also summarizes the Supreme Court's reasoning in abrogating the rule in <i>Travelers Casualty & Surety Co. v. Pacific Gas & Electric Co. (In re Pacific Gas & Electric Co.)</i>, 549 U.S. ____, 127 S. Ct. 1199 (2007).
Prime Brokers, Take Note
June 27, 2007
A recent decision issued by the Bankruptcy Court for the Southern District of New York (the 'Bankruptcy Court') in <i>Gredd v. Bear, Stearns Securities Corp. (In re Manhattan Inv. Fund Ltd.)</i>, 2007 WL 60843 (Bankr. S.D.N.Y. Jan. 9, 2007) represents a significant event for securities firms, with potentially far-reaching implications for prime brokers.
On the Move
June 27, 2007
Who's doing what; who's going where.
The Iterative e-Discovery Searching Method
June 26, 2007
From a veritable river of digital information ' including e-mails, documents, voice mails, video files, databases and other more obscure data sources ' lawyers need to extract only those specific pieces of data that will be relevant to their case. Litigators seek the e-mails, documents or other digital objects that will help exonerate their client. Knowledge of the data that a client has, good or bad, helps counsel properly build a case.
Get Back to the Real World of Security
June 26, 2007
Properly securing physical data before, during and after litigation often can be eclipsed by concerns about online 'virtual' security issues. Agreed ' firewalls, data encryption and password protection are vital safeguards. But another part of the story is how to properly secure and dispose of your hard drives, CDs, backup tapes, and obsolete hardware such as laptops, PCs, PDAs and thumb drives. Ignoring physical data-security considerations is not only careless and irresponsible ' it is just plain dangerous.
When the CEO Wants His Hotmail
June 26, 2007
Not only do most of us not have a secretary tidying up our e-mail inbox each evening, but we also have many alternative inboxes for our business correspondence. For work, a busy executive may have an office e-mail account, a Blackberry for around-the-clock access and an online mail account (such as through Gmail, Hotmail or Yahoo!) for convenience when traveling. He or she probably also has a personal account for non-business e-mail, like jokes, that must be kept out of the firm's accounts. Going through 'the file' has become an exercise not only in finding the appropriate messages and attachments, but in simply identifying all places and accounts where 'the file' might exist. Indeed, multiple accounts often are created by employees to bypass the hassles of security measures and record-retention policies diligently created by IT departments who often diligently enforce these polices and whose employees read and apply the information in publications like this one.
