In civil disputes — including bankruptcy litigation — it is not uncommon for questions to arise about a client’s potential exposure to criminal liability, whether the client is a party or a witness. Civil litigators must therefore understand the role of the Fifth Amendment privilege against self-incrimination in the civil context.

It’s often hard to tell whether the conflict between environmental cleanup laws and bankruptcy statutes is a bug or a feature. The two seem irreconcilable when the intent of environmental laws to protect public health and safety by imposing cleanup costs on the polluter runs headlong into the Bankruptcy Code’s design to give a debtor a fresh start. Frequently, the latter prevails.

The Small Business Administration (SBA) has consistently applied its traditional small business lending qualification criteria to Paycheck Protection Program (PPP) loans — likely because the CARES Act grafted the PPP onto the SBA’s Section 7(a) loan program. But the CARES Act also contemplated that the purpose of the PPP was different from traditional SBA lending programs; the PPP is part economic stimulus and part inducement for businesses to continue to pay employees, landlords and banks notwithstanding the fear that COVID-19 would bring them economic hardship.

On March 28, 2018, the Ninth Circuit Court of Appeals addressed both the in rem jurisdiction of a federal district court sitting in admiralty vis-a-vis an intervening bankruptcy, and in a question of first impression in the Ninth Circuit, the proper approach to setting the amount of maintenance an injured seaman is entitled to receive prior to trial. In Barnes v. Sea Hawaii Rafting, LLC, ___ F.3d ___ (9th Cir.

[Originally published in the Fall 2017 issue of Artisan Spirit magazine.]

Don’t forget that ….

judicial estoppel can require dismissal of a claimant’s suit for ERISA-governed long term disability (LTD) benefits if the claimant failed to list the “potential cause of action” in bankruptcy filings.

The key is to determine when the “potential cause of action” accrued. And a recent case says those claims “accrue” when the claimant receives the initial benefit denial letter.

Manufacturers, distributors and other merchants of goods who sell their products on credit terms routinely accept a high level of risk of defaulted payment from their customers. In good times, credit-related losses are relatively predictable as a percentage of sales and can be offset by variations in pricing and volume across a seller’s sales transactions. Unfortunately, we are far removed from the good times. The prolonged economic slump has resulted in increased payment defaults and a 150 percent rise in business bankruptcies since the summer of 2007.

Washington Governor Christine Gregoire has signed into law a series of changes to the state Receivership Act that will make it easier (and possibly cheaper) for creditors to utilize the Receivership Act as a tool to resolve troubled loan situations with their borrowers. The revisions will become effective 90 days after the Legislature adjourns, making July 24, 2011, the likely effective date. The changes clarify a number of points that previously puzzled both judges and practitioners.

Creditors' Rights

The intersection of bankruptcy law and intellectual property law is not a very nice neighborhood. Anyone dealing with intellectual property license agreements must think about how these agreements are affected if one party to the agreement becomes insolvent. Below are strategies to help parties draft license agreements that will pass through this intersection relatively safely.

Bankruptcy Concepts

The Absolute Priority Rule: Zachary v. California Bank & Trust