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Tech Bankruptcy
February 09, 2010
  Judge Bufford likes Websites
In In re S & B Surgery Center, Inc., 421 B.R. 546 (Bankr. C.D. Cal. 2009), Judge Samuel L. Bufford addressed the question of whether a creditors' committee MUST maintain an information website in order to comply with bankruptcy code section 1102(b)(3).

The BAPCPA added, at section 1102(b)(3), an affirmative obligation for creditors committees to provide access to case information to their constituencies. In the Refco decision the Bankruptcy Court for the Southern District of New York laid out how a creditor's committee should use a website to satisfy the section 1102(b)(3) requirement, and identified twelve features the website should contain.

In S & B Surgery Center, the creditors committee sought to provide a telephone number that creditors could call for information. They argued that maintaining a Refco compliant website would be too expensive and the number of creditors in the case did not warrant the expense. Judge Bufford disagreed, and held that the committee should maintain a website to provide information to the creditors.

Judge Bufford did not require that the website meet all twelve of the Refco factors, so long as the needs of the creditors were met. This leaves open the possibility that a creditors committee in a smaller case could use much cheaper options (read free), such as a Google Groups site (or maybe even a Facebook page) to communicate basic information about the case.

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Warren E. Agin is a partner in Swiggart & Agin, LLC, a boutique law firm in Boston, Massachusetts focusing on the needs of technology companies. Mr. Agin heads its bankruptcy department. The author of the book Bankruptcy and Secured Lending in Cyberspace (3rd Ed. West 2005), Mr. Agin also chaired the ABA's E-commerce and Insolvency Subcommittee from 1999 to 2005, co-chaired the Boston Bar Association's Internet and Computer Law Committee (2003-2005), and served on the American Bar Association's Standing Committee on Technology and Information Services (2008-2011). Mr. Agin currently co-chairs the Editorial Board of Business Law Today. A contributing editor to Norton Bankruptcy Law and Practice, 3d, and co-author of its chapter on intellectual property for the past fifteen years, he is author of numerous legal articles and addresses on topics of technology, internet and bankruptcy law.

Judge Bufford likes Websites
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