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New UCC Article 12 and Bankruptcy: Determining Ownership, Perfection and Priority in Digital Assets

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
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Conducted on Tuesday, June 27, 2023

Recorded event now available

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This CLE webinar will discuss what bankruptcy attorneys need to know about Article 12 of the Uniform Commercial Code (UCC) and related amendments to UCC Article 9 to prepare for transactions with existing and new digital assets. The panel will discuss virtual currencies, non-fungible tokens, and other digital assets as well as the potential effects of the changes on traditional financings commonly encountered by bankruptcy courts, including accounts and payment intangibles. The panel will also discuss ownership, perfection, and priority challenges that may be expected.

Description

Parties transacting business in and collateralizing obligations with digital assets or electronic records must be able to enforce their rights and to protect themselves from adverse claims of third parties, especially in bankruptcy. Despite a few decisions, much uncertainty exists about who owns crypto assets at a crypto exchange if a bankruptcy ensues.

UCC Article 12 defines a new category of intangible property--"controllable electronic records" (CER) and sets forth what rights are associated with CERs, how they are transferred, how security interests in them are perfected, and many other aspects of priority disputes.

Because Article 12 is part of the entire UCC, it affects and is affected by many other interrelated UCC amendments and provisions, especially Article 9. Counsel cannot assume that these changes do not affect legacy lending issues. For example, parties may be forced to reevaluate whether certain types of traditional accounts and payment intangibles would now be "electronic" and whether they are capable of being "controlled" such that Article 12 would now offer the controlling rules.

Listen as this panel of renowned attorneys discusses what bankruptcy attorneys need to know about proposed Article 12 of the UCC, the proposed amendments to Article 9, and other UCC amendments.

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Outline

  1. Impetus for UCC revisions
  2. Article 12
    1. Types of digital assets
    2. Controllable electronic records
    3. Effect of creation of estate on control
    4. Perfection of a security interest in a CER
  3. Article 9 and other amendments
  4. Effect of changes on traditional or hybrid financings
  5. Reclassification of traditional facilities as electronic
  6. Ownership of digital assets in bankruptcy

Benefits

The panel will review these and other vital issues:

  • What is a CER and what constitutes "control"?
  • What rights are embodied in a CER?
  • What types of laws apply and what are the relevant choice-of-law rules?
  • What are the foreseeable issues with using cryptocurrencies and NFTs as collateral?
  • What rights do trustees and debtors-in-possession have in CERs?
  • Will customers of cryptocurrency platforms be treated as investors, unsecured creditors, or trust beneficiaries?

Faculty

Daucher, Eric
Eric Daucher
Head of Restructuring, New York
Norton Rose Fulbright US

Mr. Daucher provides a full spectrum of bankruptcy, insolvency, and restructuring advice. His clients frequently...  |  Read More

Lom, Andrew
Andrew James Lom
Partner, Global Head of Private Wealth
Norton Rose Fulbright US

Mr. Lom is Co-Head of the firm’s Asset and Wealth Management International Business Group--U.S. and a member of...  |  Read More

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