[arin-ppml] ARIN-prop-140 Business Failure Clarification

[Matthew Kaufman]

On May 2, 2011, at 10:59 AM, Joe St Sauver wrote:

> 
> I have some concerns with the proposed language.
> 
> While I am not a lawyer and this is not legal advice, it is my understanding
> that not all types of US bankruptcies are the same.
> 
> For example, while it is true that a company often comes out the other side 
> of a Chapter 11 reorganization as a functioning entity, a totally insolvent
> company that files a Chapter 7 liquidation is typically disolved/end-of-life/
> out-of-business for all intents and purposes. 

Correct. But is it better for their creditors to be paid using the proceeds of an 8.3 transfer, or is it better for ARIN to attempt to reclaim the addresses. It is questionable if the latter would succeed anyway, given that in Chapter 7 the assets (and anything even somewhat like "assets") are frozen... and that the Nortel-Microsoft transfer is an example of how the court treats this.

Part of the intent here is to bring written policy into agreement with how this is actually being implemented.


> 
> In my opinion, the proposed policy should make it clear that it applies 
> ONLY to "reorganizations" and NOT to "liquidations" (as might be implied by 
> the "under ANY section of the US bankruptcy code" reference, emphasis added), 
> assuming that this is indeed the intent of the suggested policy language.

The intent is to apply to any organization which has not yet been actually dissolved.


> 
> I am also not aware of the extent to which non-US entities offer the
> equivalent of US Chapter 11 reorganizatons as an option for financially
> distressed companies. How close would an "equivalent" foreign policy need
> to be to "count" for the purposes of this policy?

I'm not a bankruptcy attorney either... this might need discussion.

Matthew Kaufman