When Bankruptcy Goes Public
October 03, 2005
Bankruptcy filings make headlines, regardless of whether the debtor is a large public company, a small private business, a national icon or a local not-for-profit. And media coverage -- and the public and political scrutiny it invites - can influence, for better or worse, the course of the case. It can even affect the very future of the organization. As the legal, operational and financial strategies associated with the bankruptcy process are put in place, communications must be an integral component.
Third Circuit Cuts Substantive Consolidation Risk
October 03, 2005
Lenders won a victory on Aug. 15 when the Third Circuit limited the equitable remedy of substantive consolidation in the Owens Corning reorganization case. <i>In re Owens Corning</i>, ____ F.3d ___, 2005 U.S. App. LEXIS 17150*1 (3d Cir. 2005), amended by 2005 U.S. App. LEXIS 18043 (3d Cir. Aug. 23, 2005); further amended Sept. 2, 2005, <i>petitions for reh'g en banc filed</i> Aug. 29, 2005. Reversing the district court, the court held that "affiliated [debtor and non-debtor] entities" could not be "substantively" consolidated on the facts of the case before it. According to the court, the debtor and its allies sought substantive consolidation, a "last-resort remedy," in order to "deprive one group of creditors [ie, the unsecured lenders] of their rights while providing a windfall to other creditors." Id. at *5-*6. The future claimants' representative and a creditors' committee filed petitions for rehearing <i>en banc</i> on Aug. 29. Answers to those petitions were due to be filed by Sept. 12.
Debtor-in-Possession Financing
October 03, 2005
There has been much discussion among bankruptcy practitioners and scholars as to whether the courts have abdicated their responsibility to enforce the Bankruptcy Code and whether debtors and creditors committees are too easily pressured by lenders such that control of bankruptcy cases has been effectively ceded to secured creditors. One of the areas where many would say this is most prevalent is with post-petition lending.
A Word from the Editor: Privacy and Data Protection Issues Are Here to Stay
September 20, 2005
Privacy has been described as <i>"the right to be let alone,"</i> a phrase popularized in an 1890 <i>Harvard Law Review</i> article by the future U.S. Supreme Court justice Louis Brandeis in which he expressed concerns about the threat posed by technology to an individual's control over his own personal information. At the close of the 19th century, the perceived technological threat to privacy was the spread of cheap photography and high-speed printing. Imagine what Justice Brandeis would think of today's camera phones, global positioning systems, employer surveillance of e-mail, and customer relationship management systems, not to mention the myriad other technological developments of the last 115 years.
