Protect Your Insurance
Whether in bankruptcy or in liquidation, trustees or liquidators of insolvent corporations look for available sources of cash to pay creditors. Unfortunately for in-house or outside attorneys representing such corporations, director and officer liability policies or professional malpractice policies are identified early on as possible sources of funds for insolvent companies. This article discusses the theories that are typically brought in these cases, and suggests ways to avoid or defend such claims in the future.
Is Your IP Worth Protecting?
Corporate counsel often relay their client's concerns about the importance of zealously protecting their company's Intellectual Property (IP), but do these clients appreciate what that entails or appreciate some of the pitfalls? Consider a few questions: If your company creates something, does it own it? If it owns it, is it protectable and, if protectable, what is the cost to fully protect it? Where should it be protected? Does it have commercial value? The purpose here is to raise the issues that address these questions and which will provide counsel some of the information needed to take a more measured approach when considering their company's IP.
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Recent developments of interest to corporate counsel.
You Need Forensic Technology!
It is almost inconceivable that in late 2003, bankruptcy trustees are conducting financial investigations without the benefit of this expertise. How can any trustee investigate the debtor and uncover assets, accounting and bankruptcy fraud without initiating a digital forensic accounting examination?
Deepening Insolvency Trend Expands to Delaware
Spurred on by the current economic downturn, the use and acceptance of deepening insolvency as a cause of action in the bankruptcy arena continues to become more established and recognized. The Third Circuit already aided this development by recognizing deepening insolvency as a cause of action under Pennsylvania law in <i>Official Committee of Unsecured Creditors v. R.F. Lafferty & Co., Inc.</i>, 267 F.3d 340 (3d Cir. 2001). Now, the Delaware Bankruptcy Court in <i>In re Exide Technologies, Inc.</i>, 2003 WL 22079513 (August 21, 2003) has recognized deepening insolvency — this time as a valid cause of action under Delaware law — in a lawsuit by an unsecured creditors committee against lenders of a bankrupt company.
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The Creditor in Possession
A hallmark of United States bankruptcy law has been the principle that a debtor should be provided with an opportunity to use the bankruptcy to get a "fresh start." That principle, initially applicable to individuals, was carried forward as an underlying premise of business reorganizations and coupled with the belief that reorganizations preserved going concern values. The value of reorganization as compared with liquidation in cases of major business failures was first realized in connection with the reorganization of railroads during the latter part of the 19th century that continued into the 20th century. In the context of the current economic environment, the underlying premise of railroad reorganizations of preserving going concern value may no longer be viable.
A Rush To Beat Tort Law Deadlines
The legislative package of the American Medical Association aimed at limiting suits against doctors and hospitals has been unusually successful this year.…
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