Comprehensive List of “Best Practices” Relating to the Forensic Acquisition, Examination, Presentation and Preservation of Computers and Electronically-Stored Data (ESI) in Bankruptcy Cases ©
by Jack Seward
Jack Seward & Associates LLC; New York
One should take care and consider the appropriate technical and legal aspects for a debtor case using established digital/computer forensic methodologies. Every debtor case needs to be tailored to the facts and circumstances related to the information technologies used, and this cannot necessarily be pre-fabricated. The specific circumstances will need to be examined on a case-by-case basis by the digital forensic accounting technologist early in the case (before the 341 and/or 2004 exam).
Domestically Avoiding International Fraudulent Conveyances—Can It Be Done? The Answer Is Far from Certain
by: Michael D. Fielding
Blackwell Sanders Peper Martin LLP; Kansas City, Mo.
Can a debtor-in-possession or trustee use §548 of the Bankruptcy Code to avoid an extraterritorial fraudulent conveyance? Based on the Fourth Circuit’s recent decision in In re French, 440 F.3d 145 (4th Cir. 2006) (cert. denied, 127 S.Ct. 72 (Oct. 2, 2006)), one would think the answer would be a resounding “yes.” However, the U.S. Bankruptcy Court for the Central District of California recently concluded that 11 U.S.C. §548 does not apply extraterritorially. In re Midland Euro Exchange Inc., 347 B.R. 708 (Bankr. C.D. Calif. 2006). While the Midland Euro decision does not create a circuit conflict, it is arguably a better reasoned opinion and should be carefully considered as one contemplates whether §§547 and 548 actions may be applied extraterritorially.
We Would Like to Hear from You on the Following Questions Concerning the Detection and Discovery of Bankruptcy Fraud
Please to add your own questions, comments and ideas and return to: Jack Seward
- How can incidents of actual or potential bankruptcy fraud and abuse be detected?
- Will the spectacular displays of accounting and bankruptcy fraud continue?
- Can the new §1104(e) help creditors and reduce bankruptcy fraud?
- What should be done to reduce bankruptcy fraud?
- What should creditors do when they have “information” on debtors and insiders concerning possible bankruptcy fraud?
- What can employees, contractors and outsourced services (past and current) do when they have “information” concerning the debtors, insiders, officers and directors related to possible bankruptcy fraud?
- What should professionals (attorneys, accountants, and turnaround and workout professionals, etc.) do when they encounter and/or discover information concerning the possible involvement of debtors, insiders, officers, directors and others in bankruptcy fraud, understanding that these individuals are often the ones who engaged them and sign the checks?
- Should the examination of the "electronic" books and records and
related financial information improve the discovery of bankruptcy fraud? - Would it be helpful to receive a list of suggested 341 questions related to the use of computers and electronic books and records and financial information?
- What are the main crime problems impacting the bankruptcy system?
Business bankruptcy – Public companies subject to Sarbanes-Oxley
Business bankruptcy – Non-public companies not subject to Sarbanes-Oxley
Individual bankruptcy – Not in business
Individual bankruptcy – In business (and/or previously in business)
Please send responses to Jack Seward
These will be collected into a master list (and if you direct me to securely destroy the original e-mail, it will be done, because being candid in your answers, questions and comments is best for all of us). We will then distribute the collected answers, questions and comments in one of our future newsletters.
We thank you for your help and committee participation.