Chapter 11 of the United States Bankruptcy Code is a useful tool available to businesses (and even some high-net-worth individuals) to restructure their debt, shed their liabilities, and reorganize. Chapter 11 is also used by companies to sell all or substantially all of their assets "free and clear" of liens, claims, and interests relatively quickly. Buyers recognize the value of being able to acquire assets free and clear pursuant to 11 U.S.C.
Several high profile bankruptcies have occurred in recent years. Most would consider a bankruptcy proceeding a last resort. But some, seeking to expunge a debt, have contemplated that bankruptcy may be a safe way to avoid the long-arm of the law. The Federal Trade Commission, however, has taken great steps to ensure that an FTC judgment firmly stays on a wrongdoer’s balance sheet.
The failure of an FDIC-insured commercial bank, savings association or industrial loan company (collectively referred to as a “bank”) is traumatic and economically devastating to both stakeholders in the institution, as well as the local economy served by that entity.
1. Introduction
As a result of the failure of over 200 banks and savings institutions in 2009—and the likelihood of 300 or more failures in the foreseeable future—the banking industry may be faced with another tsunami of litigation brought by the FDIC alleging liability against officers and directors for the failure of their respective institutions.
Some in Congress would like to see earmarking eliminated completely, but the most you're likely to see are additional reforms to the earmarking process. Both sides of the debate have strong champions who have no interest in giving in to their opponents. At the same time, a coalition of lobbyists and public interest advocates are promoting additional earmark reforms that deserve serious consideration.
On April 29, 2011, the Internal Revenue Service (“IRS”) issued Private Letter Ruling (“PLR”) 201117036 denying recognition of tax-exempt status under Section 501(c)(3) of the Internal Revenue Code (“Code”) to a nonprofit credit counseling agency (“CCA”) because its primary activity would have been the provision of pre-bankruptcy certification and post-bankruptcy counseling for fees.
On Wednesday, March 13, 2013, the Executive Office for United States Trustees (“EOUST”) released its long-awaited final rules for pre-bankruptcy counseling and post-filing debtor education. The regulations update procedures and criteria United States Trustees (“USTs”) shall use when determining whether applicants seeking to become and remain approved as: (1) nonprofit budget and credit counseling agencies (“credit counseling agencies” or “agencies”) (the “
The head of the Federal Trade Commission’s (“FTC”) Consumer Protection Bureau, David Vladeck, recently questioned the planned sale of email addresses and other information for about 48 million consumers by Borders Group, Inc. (“Borders”) as part of that entity’s bankruptcy proceeding.3 In a public letter, Mr. Vladeck noted that the data held by Borders included records of merchandise purchased (video and books) that could be perceived as personal by many customers.
How to Keep Follow-On Investments from Getting Squeezed
Thinking about investing in a distressed company? If the company declares bankruptcy, your investment may be subject to equitable subordination, whereby your claim is subordinated to the claims of other creditors. One of the most crucial factors in determining whether your claim is equitably subordinated is whether you are deemed an insider as an insider’s actions undergo significantly more scrutiny than those of non-insiders. Of course, when investing in a distressed company, the more control over the entity’s, the better, right?