(a) General rule. To be eligible for an award under this subpart,
an applicant must have been named as a party to the adjudicatory proceeding
and show that it meets all other conditions of eligibility set forth
below.
8-092
(b) Types of eligible applicant. An applicant is eligible for an award only if it meets at least
one of the following descriptions:
(1) An individual with a net worth of not
more than $2 million at the time the adversary adjudication was initiated;
(2) Any sole owner of
an unincorporated business, or any partnership, corporation, association,
unit of local government or organization, the net worth of which did
not exceed $7,000,000 and which did not have more than 500 employees
at the time the adversary adjudication was initiated;
(3) A charitable or other
tax-exempt organization described in section 501(c)(3) of the Internal
Revenue Code (26 U.S.C. 501(c)(3)) with not more than 500 employees
at the time the adversary proceeding was initiated; or
(4) A cooperative association
as defined in section 15(a) of the Agricultural Marketing Act (12
U.S.C. 1141j(a)) with not more than 500 employees at the time the
adversary proceeding was initiated.
8-092.1
(c) Factors to be considered. In determining the eligibility of an applicant—
(1) An applicant who owns an unincorporated
business shall be considered as an “individual” rather
than a “sole owner of an unincorporated business” if the
issues on which he or she prevailed are related to personal interests
rather than to business interests.
(2) An applicant’s net worth includes
the value of any assets disposed of for the purpose of meeting an
eligibility standard and excludes the value of any obligations incurred
for this purpose. Transfers of assets or obligations incurred for
less than reasonably equivalent value will be presumed to have been
made for this purpose.
8-092.2
(3) The net worth of a financial institution
shall be established by the net worth information reported in conformity
with applicable instructions and guidelines on the financial institution’s
financial report to its supervisory agency for the last reporting
date before the initiation of the adversary proceeding. A bank holding
company’s and a savings and loan holding company’s net
worth will be considered on a consolidated basis even if the bank
holding company or the savings and loan holding company is not required
to file its regulatory reports to the Board on a consolidated basis.
(4) The employees of an
applicant include all those persons who were regularly providing services
for remuneration for the applicant, under its direction and control,
on the date the adversary proceeding was initiated. Part-time employees
are counted on a proportional basis.
8-092.3
(5) The net worth and number of employees
of the applicant and all of its affiliates shall be aggregated to
determine eligibility. As used in this subpart, “affiliates”
are: individuals, corporations, and entities that directly or indirectly
or acting through one or more entities control at least 25 percent
of the voting shares of the applicant, and corporations and entities
of which the applicant directly or indirectly owns or controls at
least 25 percent of the voting shares. The Board may determine, in
light of the actual relationship among the affiliated entities, that
aggregation with regard to one or more of the applicant’s affiliates
would be unjust and contrary to the purposes of this subpart and decline
to aggregate the net worth and employees of such affiliate; alternatively,
the Board may determine that financial relationships of the applicant
other than those described in this paragraph constitute special circumstances
that would make an award unjust.
