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For the first time, investors and fund managers put more of their trust – and more money – into relatively young exchange traded funds (ETF) and ETF products than into the much older hedge fund industry at the end of Q2. Read more here.
1 week 4 days ago
Attorney.  Counselor.  Advisor.  As “the last bastion of the generalist,” the role of the restructuring attorney takes various forms and requires a restructuring attorney to wear many different hats – at times acting both as lawyer and business advisor.  This combination of business and law is very often what draws professionals to the practice area in the first place.  The line, however, between business and legal advisor is often blurry and imprecise, and a recent decision from the Seventh Circuit addressing legal advice in the context of what appeared to be ordinary corporate transactions may have just made the line a little blurrier.  Background
1 week 4 days ago
Client, with the assistance of its attorney, engages in illegal conduct.  Client places money received from its illegal conduct in the attorney’s trust account.  Attorney absconds with these illegal funds.  When the client brings a non-dischargeability action in the attorney’s bankruptcy case, may the attorney defend the action under the unclean hands doctrine because the funds he stole were gained by the client through its own illegal conduct?  As a matter of public policy, the Ninth Circuit has answered this question in the negative.  In Northbay Wellness Group, Inc. v. Beyries (In re Beyries), 2015 WL 3529634 (9th Cir. 2015), the attorney, Michael Beyries, served on Northbay Welness’ board of directors and acted as its counsel.  Northbay engaged in business in California as a medical marijuana dispensary, a business illegal under federal law.  Northbay deposited $25,000 into Beyries’ trust account to hold for use as a legal defense fund for Northbay and its employees.  Beyries stole the money, resigned from Northbay’s board, and absconded. 

Read More from: Creditors' Rights

1 week 4 days ago
On the five-year anniversary of Dodd-Frank, it's time to increase accountability and transparency at the CFPB. Congress should start by passing a bill that would overhaul the agency's organizational structure from a single-director model to a bipartisan, five-person commission appointed by each incoming president.

Read More from: BankThink

1 week 4 days ago
Authored by Edward L. Kelly and Karl R. Grussand Edward L. Kelly and Karl R. Gruss of Rogers TowersWhen a State or local government law, regulation or ordinance in Florida decreases the value of the land at which it is directed, the affected landowner can invoke the Bert J. Harris, Jr., Private Property Rights Protection Act (the “Bert Harris Act”), § 70.001, Florida Statutes, to obtain compensation for the actual loss to the fair market value of the real property. But what if the government action does not directly apply to the landowner’s dirt, but instead only applies to the property lying adjacent to the landowner’s? If the government action decreases the fair market value of the adjacent landowner’s property, can the landowner claim relief as if the government action directly applied to her land? An amendment to the Bert Harris Act set to take effect on October 1, 2015, resolves a conflict in the courts that emerged last month by clarifying that only the owner of real property that is the subject of the government action can invoke the act to obtain relief. What is the Bert Harris Act?

Read More from: Florida Banking Law Blog

1 week 4 days ago
Receiving Wide Coverage ... Banks' Capital Restraints: Get smaller, or else. That's the message from the Fed to big banks after the finalization of rules on Monday. The Fed approved a graduated surcharge for globally risky banks and it established capital requirements for GE Capital. Fed Chair Janet Yellen said the capital surcharge rule is designed to reduce the potential for large institutions to fail, or force them to reduce their risk profile. In effect, it...

Read More from: BankThink

1 week 4 days ago
CII filed a rulemaking petition asking that the SEC require companies to clarify the voting standards for the election of directors.  In their view, companies that use the state law default plurality rule, coupled with a policy that requires the director to submit a resignation if the director does not receive a majority of votes in favor (which CII calls "plurality-plus”), should not be permitted to state that their directors are elected by majority voting standards.  In addition, their proxy cards should only allow for the ability to “withhold” instead of voting “against”.  
1 week 4 days ago
A&P plans to sell or close its remaining stores as part of its return to bankruptcy, spelling its likely demise. Read the Daily Bankruptcy Review article via The Wall Street Journal. (Daily Bankruptcy Review is a daily newsletter with comprehensive coverage and analysis of emerging and in-progress insolvencies and turnarounds. For a two-week trial, visit http://on.wsj.com/DJBankruptcyNews, scroll to the bottom and click “try for free.”) Caesars is looking to broaden support for its restructuring plan, WSJ reports. The Chinese construction firm building Bahamas resort Baha Mar Ltd. wants the not-yet-open resort’s bankruptcy case dismissed, Reuters reports. The New York Daily News reports on the financial struggles of the operator of the Yankee Stadium parking garage.

Read More from: WSJ.com: Bankruptcy Beat

1 week 4 days ago
A&P plans to sell or close its remaining stores as part of its return to bankruptcy, spelling its likely demise. Read the Daily Bankruptcy Review article via The Wall Street Journal. (Daily Bankruptcy Review is a daily newsletter with comprehensive coverage and analysis of emerging and in-progress insolvencies and turnarounds. For a two-week trial, visit http://on.wsj.com/DJBankruptcyNews, scroll to the bottom and click “try for free.”) Caesars is looking to broaden support for its restructuring plan, WSJ reports. The Chinese construction firm building Bahamas resort Baha Mar Ltd. wants the not-yet-open resort’s bankruptcy case dismissed, Reuters reports. The New York Daily News reports on the financial struggles of the operator of the Yankee Stadium parking garage.

Read More from: WSJ.com: Bankruptcy Beat

1 week 4 days ago
If Congress fails to act swiftly, most lending supported by the SBA will shut down for much of the next two months. This would undermine recent strength in a vital component of the American economy.

Read More from: BankThink

1 week 4 days ago
By TARA SIEGEL BERNARDOn a typical day in her last job, Janet Roth left home at 4 a.m. each day and drove 40miles to a tax preparation office in Glendale, Ariz. When she finally got back home,she had less than an hour before starting her 6 p.m. shift decorating cakes atWalmart. She worked until midnight, giving her just a few hours to sleep beforestarting all over again.Ms. Roth, 68, worked in many jobs over the years, but she never made quiteenough to pay back the $33,000 she borrowed years earlier for an education degreeshe couldn’t afford to complete, and certainly not the $95,000 it ballooned to indefault.She filed for bankruptcy, wiping out five figures in medical debts. But erasingstudent loans requires initiating a separate legal process, where borrowers mustprove that paying the debt would cause an “undue hardship.”To prepare her case, she copied down statutes at a local law library and watchedepisodes of “Law and Order.” Her efforts paid off: Ms. Roth’s loans were dischargedin 2013.That Ms. Roth, now living on Social Security, managed to succeed in what is knownas a notoriously difficult process is not even the most remarkable aspect of her case.Instead, the ruling captured the attention of other judges and legal scholarsbecause of a judge’s bluntly worded written opinion that rebuked the widely adoptedhardship standard used to determine whether a debtor is worthy of a discharge.The judge, Jim D.

Read More from: Shenwick & Associates

1 week 5 days ago
When a contract is called a lease and has some characteristics of a lease, but operates to grant the lessee the exclusive right to mine and remove coal from the premises, how should the contract be treated in bankruptcy?  In a previous post, we examined this question in the context of oil and gas leases.  Similar to oil and gas leases, in
1 week 5 days ago
Bloomberg News
A key prosecution witness in the Dewey & LeBoeuf LLP trial said Monday that he never discussed improper accounting practices with Dewey’s former chairman, Steven Davis, one of three defendants accused by the Manhattan district attorney’s office of orchestrating a financial fraud at the now-defunct law firm. The statements came during cross-examination of Dewey’s former finance director, Francis Canellas, who is on the stand as one of the government’s star witnesses. On cross-examination Monday, an attorney for Mr. Davis solicited a series of answers aimed at distancing his client from the allegations. Upon questioning, Mr. Canellas told jurors that Mr. Davis had not instructed him to to make an improper accounting adjustment and that he had never told the chairman such adjustments were being made. Mr. Davis’s lawyer, Elkan Abramowitz, also dismissed the importance of a meeting held in Mr. Davis’s office in December 2011 that jurors heard about last week. Prosecutors showed jurors an email from Dewey’s then-chief financial officer, Joel Sanders, copied to Mr. Davis, asking Mr. Canellas to bring “the list of the ‘accounting adjustments’ you’ve come up with so far,” to the meeting. Based on Mr. Canellas’s accounting knowledge, Mr. Abramowitz asked, there’s “nothing per se inappropriate about the term ‘accounting adjustments?’”

Read More from: WSJ.com: Bankruptcy Beat

1 week 5 days ago
Bloomberg News
A key prosecution witness in the Dewey & LeBoeuf LLP trial said Monday that he never discussed improper accounting practices with Dewey’s former chairman, Steven Davis, one of three defendants accused by the Manhattan district attorney’s office of orchestrating a financial fraud at the now-defunct law firm. The statements came during cross-examination of Dewey’s former finance director, Francis Canellas, who is on the stand as one of the government’s star witnesses. On cross-examination Monday, an attorney for Mr. Davis solicited a series of answers aimed at distancing his client from the allegations. Upon questioning, Mr. Canellas told jurors that Mr. Davis had not instructed him to to make an improper accounting adjustment and that he had never told the chairman such adjustments were being made. Mr. Davis’s lawyer, Elkan Abramowitz, also dismissed the importance of a meeting held in Mr. Davis’s office in December 2011 that jurors heard about last week. Prosecutors showed jurors an email from Dewey’s then-chief financial officer, Joel Sanders, copied to Mr. Davis, asking Mr. Canellas to bring “the list of the ‘accounting adjustments’ you’ve come up with so far,” to the meeting. Based on Mr. Canellas’s accounting knowledge, Mr. Abramowitz asked, there’s “nothing per se inappropriate about the term ‘accounting adjustments?’”

Read More from: WSJ.com: Bankruptcy Beat

1 week 5 days ago
Roy Friedman is executive vice-president of Dillon Gage Metals, one of the world’s largest precious metals wholesale trading firms. The company is an authorized purchaser for all major world mints and maintains inventory in over 20 countries around the world. Dillon Gage Metals also owns International Depository Services (IDS) Group, which operates two secure precious metals depositories in Delaware, and Ontario, Canada. Read more here.
1 week 5 days ago
Does your debt make you feel stuck in a bad place in your life? You can’t get ahead, no matter what you try. You pour everything you’ve got into worrying about the bills, so there’s no energy left to put into making the other parts of your life better. You can’t focus at work so you underperform, which hinders your chances at raises and promotions. Seeing friends and family members is just another opportunity to be reminded of how well they’re doing, and how poorly your life is turning out. One thing you know is this – you’re stuck in a bad place. And you need to figure a way out of it of it’s just going to get worse. If this sounds like your world, you should consider starting over … from the beginning. A Second Chance To Get It Right Nothing is perfect the first time. Whether it’s a bestselling book, a painting, a movie, or your life … expecting it to be perfect is unreasonable. In spite of the fact that we’re all human (and, therefore, imperfect), we never want to start over once we’ve put effort into doing something. It feels like giving up, and we’re wired to avoid that scenario. But sometimes the only way to get a better result is to scrap everything and start over.
1 week 5 days ago
As new foreign bank regulations push financial institutions to shed risk-weighted assets, companies like Barclays and RBS are reducing their roles in the mortgage-backed securities market. But reduced competition in this sector is bad for liquidity.

Read More from: BankThink

1 week 5 days ago
   Santander objected to confirmation of a plan in In re Ware, No. 15BK03414, 2015 WL 4389688 (Bankr. N.D. Ill. July 17, 2015).  In this case the vehicle securing the debt to Santander had been stolen about six months after purchase, and about 2 1/2 years prior to the filing of the bankruptcy. A police report was filed, and Santander notified, but for reasons not disclosed to the court, the insurance claim was denied.  Santander did not make any collection efforts against the debtor after the theft.  The Debtor filed a chapter 13 bankruptcy case providing for surrender of the vehicle to Santander.  Santander objected, asserting that §1325(a)(5)(C) requires the debtor to physically deliver the collateral to the creditor.   The Court looked to the plain meaning of the words, examining the Oxford English Dictionary's definition of surrender to “The giving up by a bankrupt of his property to his creditors or their assignees; also, his due appearance in the bankruptcy court for examination, as formerly required by the bankruptcy acts.” Oxford English Dictionary (online version, November 2010), http://www.oed.com (last visited July 17, 2015).  Id.  Property, in turn, is defined expansively to include rights not subject to immediate enjoyment.  Hence, surrendering of property can be accomplished by surrendering rights alone.     Other sources agree with this conclusion.

Read More from: Tampa Bankruptcy

1 week 5 days ago
Huron Consulting Servs., LLC v. Physiotherapy Holdings, Inc. (In re Physiotherapy Holdings, Inc.), No. 14-693 (LPS), 2015 WL 4205146 (D. Del. July 13, 2015) In the spring of 2014, the Delaware Bankruptcy Court was presented with a contested assumption dispute involving six agreements between Physiotherapy Holdings Inc. and its various affiliates (together, the “Debtors”) and Huron Consulting Services, LLC (“Huron”).  While the Debtors sought to assume just one – a Licensing Agreement necessary to ongoing operations – Huron argued that all six agreements were integrated and must be assumed together or not at all.  For reasons discussed in our previous post, Judge Gross sided with the Debtors, allowing them to assume only the Licensing Agreement.  This appeal followed. Read More ›

Read More from: Delaware Bankruptcy Insider

1 week 5 days ago

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