BLT: March 2019

 

Featured Articles

Business & Corporate

Delaware District Court Overturns Bankruptcy Court Decision Disallowing Unsecured Claim for Post-Petition Contractual Attorneys’ Fees

It is a quirk of the Bankruptcy Code that while it expressly allows oversecured creditors’ claims for post-petition contractual attorneys’ fees, it is silent as to the treatment of claims for post-petition contractual attorneys’ fees on unsecured claims. In part because the Supreme Court in Travelers Casualty & Surety Co. of America v. Pacific Gas & Electric Co., 549 U.S. 443 (2007) did not directly address the question whether unsecured creditors can recover post-petition contractual attorneys’ fees as part of their claims, courts continue to reach conflicting decisions. Very recently, in connection with a dispute arising out of the Tribune Company’s 2008 bankruptcy, Delaware District Judge Richard G. Andrews reversed the decision below and interpreted Travelers to mean that unsecured claims for post-petition contractual attorneys’ fees are not barred by Section 506(b) of the Bankruptcy Code. Wilmington Trust Co. v. Tribune Media Co. (In re Tribune Media Co., et al), Case No. 15-01116 9 (RGA), 2018 WL 6167504 (D. Del. Nov. 26, 2018).

Business & Corporate

Why the China-U.S. Tariff War Will Fizzle Out

President Trump surprised many observers in August 2017 when he abruptly ordered the Office of the United States Trade Representative (USTR) to initiate an in-depth investigation into China and the need for protecting intellectual property (IP). The USTR confirmed that 40 million jobs in America were at risk because they were, either directly or indirectly, attributable to IP industries. The president utilized section 301 of the Trade Act of 1974 as the tool to target what he viewed as China’s unjustified actions harming certain U.S. industries. Interestingly, the president used section 301 in the same way it had been utilized two decades earlier to target Japanese trade practices.

Business & Corporate

Clash of the Titans: Federal Versus State Interests in Bank Partnerships

There is slow-moving, high drama happening in Colorado between the Federal Deposit Insurance Corporation (FDIC) and the administrator of the Colorado Uniform Consumer Credit Code (UCCC). This refers, of course, to the litigation filed by the Colorado UCCC administrator against Avant and related parties, and Marlette Funding and related parties (the Partners) (Zavislan v. Avant of Colorado LLC, 2017cv30377 (District Court City & County of Denver, Mar. 9, 2017); Meade v. Marlette Funding LLC d/b/a Best Egg, 2017cv30376 (District Court City & County of Denver, Mar. 3, 2017)). This drama intensified last fall when the regulator amended its complaint, originally filed in March 2017, to add national bank defendants.

Business & Corporate

The California Rule on Public Employee Pensions Under Attack: Will We Still Call It The “California Rule” If It Is No Longer The Rule In California?

Most public employees in California are eligible to enroll in a state or county retirement system. These retirement systems are governed by state statutes, known primarily as either the Public Employees’ Retirement Law (“PERL”) or the County Employees’ Retirement Law (“CERL”), depending on the retirement system in question.

Business & Corporate

Avoiding Monetary Penalties After OCC Enforcement Orders

In recent years, the OCC has aggressively used its cease and desist authority to address a variety of supervisory problems, including unfair or deceptive acts or practices, Bank Secrecy Act/anti-money laundering, and safety and soundness. As a result, there are a sizeable number of consent cease and desist orders that are in place against OCC-supervised institutions. Although the OCC has issued consent orders against banks of all sizes, the largest institutions have been disproportionately affected, and many of them remain under longstanding consent orders.

Business & Corporate

Antitrust—Empowering Compliant Sales

Competition law, anti-bribery and anti-corruption (ABC), and personal data protection are all essential (but not exclusive) components of a robust legal compliance program. In companies where no such program is in place, employees may nevertheless obtain a general understanding of ABC compliance via mainstream media, and of personal data protection via the numerous GDPR awareness campaigns on social media. Awareness and understanding of competition law, however, is often less robust, and this is especially true outside the United States.

Business & Corporate

What Is a Charging Order and Why Should a Business Lawyer Care?

Suppose your client has a judgment from a court in state X against a shareholder of a closely held corporation organized under the law of state X. You know that your client can levy on the judgment debtor’s shares to enforce the judgment and either obtain the shares (and attendant voting and economic rights) or trigger a pre-existing buy-out agreement with the shareholders or the corporation, which will replace the judgment debtor’s shares with right to payment. The relevant civil procedures may be complicated (or even arcane), but in theory your client’s remedy is straightforward.

Business & Corporate

Every Link Must Be Equally Strong in the Cybersecurity Chain

Today’s computer hackers are helping themselves to the privileged information that has been a core covenant of the attorney-client relationship for hundreds of years. Hackers know the value of sensitive information that is exchanged and retained between a business and its law firms. According to the most recent information from the American Bar Association, 23 percent of law firms experienced a cyber attack or data breach in 2018.

Business & Corporate

What To Do Next With Biometric Information in Illinois?

President Trump surprised many observers in August 2017 when he abruptly ordered the Office of the United States Trade Representative (USTR) to initiate an in-depth investigation into China and the need for protecting intellectual property (IP). The USTR confirmed that 40 million jobs in America were at risk because they were, either directly or indirectly, attributable to IP industries. The president utilized section 301 of the Trade Act of 1974 as the tool to target what he viewed as China’s unjustified actions harming certain U.S. industries. Interestingly, the president used section 301 in the same way it had been utilized two decades earlier to target Japanese trade practices.

Business & Corporate

Canada Supreme Court Rules That Privacy is Not An “All-or-Nothing Concept”

While considering the specific criminal charge of voyeurism, Canada’s Supreme Court of Canada recently confirmed that privacy is not an ”all-or-nothing concept,” and being in a public or semi-public space does not automatically negate all expectations of privacy with respect to observation or recording. This case involved Mr. Ryan Jarvis, an English teacher at a high school who used a camera concealed inside a pen to make surreptitious video recordings of female students (particularly focusing on their faces, upper bodies and breasts) while they were engaged in ordinary school-related activities in common areas of the school.

Business & Corporate

Skadden Settlement with DOJ Over Foreign Agents Registration Act Violation

In a 64-page settlement agreement with the Department of Justice (DOJ), Skadden, Arps, Slate, Meagher & Flom has agreed to pay more than $4.6 million to the U.S. Treasury and register retroactively as a foreign agent of the Ukrainian government in a case tied to Paul Manafort. Under the Foreign Agents Registration Act (FARA), a U.S. person engaging in political activities on behalf of a foreign principal, which includes a foreign government, is required to register and make a variety of written public disclosures to the DOJ.

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