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Articles 1 - 20 of 20
Full-Text Articles in Law
Against Bankruptcy: Public Litigation Values Versus The Endless Quest For Global Peace In Mass Litigation, Abbe Gluck, Elizabeth Chamblee Burch, Adam Zimmerman
Against Bankruptcy: Public Litigation Values Versus The Endless Quest For Global Peace In Mass Litigation, Abbe Gluck, Elizabeth Chamblee Burch, Adam Zimmerman
Scholarly Works
Can bankruptcy court solve a public health crisis? Should the goal of “global peace” in complex lawsuits trump traditional litigation values in a system grounded in public participation and jurisdictional redundancy? How much leeway do courts have to innovate civil procedure?
These questions have finally reached the Supreme Court in Harrington v. Purdue Pharma L.P., the $6 billion bankruptcy that purports to achieve global resolution of all current and future opioids suits against the company and its former family owners, the Sacklers. The case provides a critical opportunity to reflect on what is lost when parties in mass torts find …
Bankruptcy Grifters, Lindsey Simon
Bankruptcy Grifters, Lindsey Simon
Scholarly Works
Grifters take advantage of situations, latching on to others for benefits they do not deserve. Bankruptcy has many desirable benefits, especially for mass-tort defendants. Bankruptcy provides a centralized proceeding for resolving claims and a forum of last resort for many companies to aggregate and resolve mass-tort liability. For the debtor-defendant, this makes sense. A bankruptcy court’s tremendous power represents a well-considered balance between debtors who have a limited amount of money and many claimants seeking payment.
But courts have also allowed the Bankruptcy Code’s mechanisms to be used by solvent, nondebtor companies and individuals facing mass-litigation exposure. These “bankruptcy grifters” …
The Settlement Trap, Lindsey Simon
The Settlement Trap, Lindsey Simon
Scholarly Works
Mass tort victims often wait years for resolution of their personal injury claims, but many who successfully navigate this arduous process will not receive a single dollar of their settlement award. According to applicable bankruptcy and state law, settlement payments may be an asset of the estate that the trustee, exercising its significant authority, administers and distributes to creditors instead of a claimant who had filed for bankruptcy. This distribution power maximizes repayment, a critical counterbalance to the robust protections and benefits that debtors receive in bankruptcy.
Setting aside the perceived unfairness of taking desperately needed money from tort victims, …
Claim Preclusion And The Problem Of Fictional Consent, Lindsey Simon
Claim Preclusion And The Problem Of Fictional Consent, Lindsey Simon
Scholarly Works
The doctrine of claim preclusion promotes fairness and finality by preventing parties from raising claims that already were (or could have been) raised in a prior proceeding. This strict consequence can be imposed only when the litigant received minimal due process protections in the initial proceeding, including notice and direct or indirect participation.
Modern litigation has caused a new problem. In some cases, a party may be precluded from ever raising a claim on the grounds of “fictional consent” to a prior court’s decisionmaking authority. Litigation devices have expanded the potential reach of judgments through aggregation and broad jurisdictional grants, …
The Guardian Trustee In Bankruptcy Courts And Beyond, Lindsey Simon
The Guardian Trustee In Bankruptcy Courts And Beyond, Lindsey Simon
Scholarly Works
Litigation systems create dangers of unfairness. Citizens worry, and should worry, about exploitive settlements in aggregate litigation, potential biases in administrative proceedings, and troubling power imbalances in criminal trials. Public confidence in adjudicative processes has eroded to an all-time low. This Article explores the untapped potential of adding independent watchdog entities to address systemic threats to the integrity of government decisionmaking. These entities, which I call “guardian trustees,” do not fit within the traditional framework of our adversary system. Though guardian trustees already operate in bankruptcy proceedings, they have thus far received little attention in scholarly literature. This Article begins …
Asset Partitioning And Financial Innovation, Christopher Bruner
Asset Partitioning And Financial Innovation, Christopher Bruner
Scholarly Works
Review of the article by Ofer Eldar and Andrew Verstein titled “The Enduring Distinction between Business Entities and Security Interests”, 92 Southern California Law Review, no. 2 (2019).
Chapter 11 Shapeshifters, Lindsey Simon
Chapter 11 Shapeshifters, Lindsey Simon
Scholarly Works
Logic and equity would seem to demand that when administrative agencies are creditors to a bankrupt debtor, they should have the same status as other creditors. But a creditor agency retains its regulatory authority over the debtor, permitting it to continue with agency business such as conducting enforcement proceedings and awarding licenses. As a result, though bankruptcy law and policy both strongly support equal distribution of the estate, administrative agencies have been able to circumvent these goals through the use of “shapeshifting” behaviors. This Article evaluates two dangerous shapeshifting scenarios:
(1) where the agency avoids the limitations of creditor status …
Employee Interests In Bankrupcy: Lessons From Enron, Lorie Johnson
Employee Interests In Bankrupcy: Lessons From Enron, Lorie Johnson
Popular Media
Enron employees lost over $1 billion in retirement savings when the company failed and filed for bankruptcy protection. Many of these employees also lost their jobs. Enron employees were both visible and vocal about their losses, quickly obtaining the support of both the AFL-CIO and Jesse Jackson’s Rainbow/Push Coalition in their fight to get some redress for their losses. Since Enron was current on its payroll at the time of the bankruptcy filing, employees’ losses consisted of severance payments totaling $145 million and the losses associated with investments in Enron stock through their 401(k) accounts.
Secured Credit And Insolvency Law In Argentina And The U.S.: Gaining Insight From A Comparative Perspective, Guillermo A. Moglia Claps, Julian B. Mcdonnell
Secured Credit And Insolvency Law In Argentina And The U.S.: Gaining Insight From A Comparative Perspective, Guillermo A. Moglia Claps, Julian B. Mcdonnell
Scholarly Works
It is not the purpose of this study to argue for or against changes in the secured credit or insolvency law of Argentina or the U.S. The perpetual clash of interested noted by James Madison and the contemporary pressures of the global economy are likely to assure that these areas of law will be subject to continuing scrutiny in both countries. Instead, we first urge that the law governing the creation and enforcement of security devices and the way in which insolvency laws impact these devices be considered together as part of one system of financing. The power which secured …
The Legal Regulation Of Hedge Funds In The United States Long-Term Capital Management Episode, Jong Cheol Park
The Legal Regulation Of Hedge Funds In The United States Long-Term Capital Management Episode, Jong Cheol Park
LLM Theses and Essays
Mutual funds and hedge funds are popular forms of investment in the United States and throughout the world. Mutual funds are regulated by securities' regulators in the United States. Hedge funds, however, are not regulated because of their operational flexibility in investment. U.S. regulators are concerned that if they regulate hedge funds, hedge funds will, along with their economic benefits, emigrate to offshore havens. However, if we consider the importance of the American financial markets in the world, this idea can be dismissed. Due to globalization in the capital markets, small events in the United States can have large effects …
The Use Of Intellectual Property As Collateral: Gap In The Perfection Of A Security Interest, Sofia Benammar
The Use Of Intellectual Property As Collateral: Gap In The Perfection Of A Security Interest, Sofia Benammar
LLM Theses and Essays
The purpose of the present thesis is to let French lawyers know which step they need to take in order to best assist their client in securing a more solid investment. Lenders want to be protected. Lenders want to be sure that they can use the intellectual property rights in a commercial environment free from superior claims by third parties. In other words, a lender who provides a large loan to a borrower wants to know how and where its security interest will be perfected and what is the best way for him to have priority over other claims. This …
Bankruptcy Reorganization: Legal Dynamics Associated With Economic Discontinuity, Young Rock Noh
Bankruptcy Reorganization: Legal Dynamics Associated With Economic Discontinuity, Young Rock Noh
LLM Theses and Essays
This thesis attempts to discover the factors leading to such failures and to propose a cure. It argues that the basic structure of Chapter 11 of the Code, the debtor in possession structure, is one of the essential factors causing such a high rate of failure. The thesis further asserts that it is possible to reduce the rate of unsuccessful reorganization if the bankruptcy court exercises its power of case management more actively and expeditiously. For example, the court can screen the debtors' filing for relief before the reorganization case proceeds too far. Chapter II of this thesis examines the …
Derivatives And Risk Framework, Ravichandra Vasant Kini
Derivatives And Risk Framework, Ravichandra Vasant Kini
LLM Theses and Essays
The purpose of this thesis is to explore the dynamics of the fast-growing international financial markets and to study in particular the risks associated with the different kinds of financial instruments. The Barrings Bank Crisis, Proctor and Gamble, Gibson Greetings cases against Bankers Trust, and the Orange County Bankruptcy has prompted regulatory authorities to focus on the risks involved in the derivatives markets. In this paper, the first chapter explains the basic working of the different kinds of derivative instruments especially concentrating on Swaps, Futures, and Options. The second chapter goes on to explain, the risks involved in the uses …
Commercial Arbitration In The U.S.: The Arbitrability Of Disputes Arising From Statute-Based Claims, Sylvie Frankignoul
Commercial Arbitration In The U.S.: The Arbitrability Of Disputes Arising From Statute-Based Claims, Sylvie Frankignoul
LLM Theses and Essays
A leading contemporary expert in arbitration has explained: "The concept of arbitrability determines the point at which the experience of contractual freedom ends and the public mission of adjudication begins. In effect, it establishes a dividing line between the transactional pursuit of private rights and courts' role as custodians and interpreters of the public interest." 1 A major part of the arbitrability doctrine deals with the kind of claims that can fall within the scope of agreements for private dispute resolution. Arbitration clauses are an integral part of the parties' transactions. Nevertheless, the American judiciary historically has refused to enforce …
Reorganization A Comparative Study Of Reorganization In Denmark And In The United States, Poul Jagd Mogensen
Reorganization A Comparative Study Of Reorganization In Denmark And In The United States, Poul Jagd Mogensen
LLM Theses and Essays
The purpose of this thesis is to analyze and discuss a list of specific problems in the current Danish system and in this analysis to examine how these problems are dealt with under the United States laws on reorganization. The thesis consists of five parts in addition to this Introduction. Part II is an introduction to the laws on reorganization in Denmark and in the United States. Part II also includes a brief introduction to out-of-court workouts as an alternative to reorganization under the bankruptcy laws. Part III provides statistical information on the number of reorganizations, the outcome of reorganizations, …
Debtors' Good Faith In Us Bankruptcy Proceedings, Chen Yang
Debtors' Good Faith In Us Bankruptcy Proceedings, Chen Yang
LLM Theses and Essays
Bankruptcy is a judicial process purporting to regulate and adjust the financial relationships between debtors and creditors which come into a deadlock. In the modern United States, bankruptcy has become a concept pervading each corner of the social and economic lives. It touches mass tort victims, large corporations, small family business, government institutions, and even normal individuals. The appearance of the modern bankruptcy law of the United States is signaled by the enactment of the Bankruptcy Reform Act in 1978 which, together with later amendments, constitute the current Bankruptcy Code of the United States; but also help them strategically restructure …
The Duties And The Powers Of The Chapter 7 Trustee In Bankruptcy In The United States And In Belgium, Chantal J. De Nauw
The Duties And The Powers Of The Chapter 7 Trustee In Bankruptcy In The United States And In Belgium, Chantal J. De Nauw
LLM Theses and Essays
U.S. bankruptcy law offers a wide range of protections to a variety of debtors. The possibility of liquidation, reorganization, or rehabilitation is available to corporations, partnerships, individuals, and even some government institutions in the U.S. Conversely, the accessibility to bankruptcy in Belgium is restricted. In Belgium, only a salesman, as defined in the Belgian Code of Commerce, has access to bankruptcy protection, and this access is restricted in nature only to liquidation. This thesis analyzes the differences in the bankruptcy systems of the U.S. and Belgium, paying special attention to the role of the bankruptcy trustee in Chapter 7 bankruptcy …
The Effect Of Bankruptcy On Executory Contracts In General And On Licensing Agreements Of Intellectual Property In Particular, Alexandra Baumgartner
The Effect Of Bankruptcy On Executory Contracts In General And On Licensing Agreements Of Intellectual Property In Particular, Alexandra Baumgartner
LLM Theses and Essays
11 U.S.C. § 365(a) provides that a bankruptcy trustee, subject to the court’s approval, may assume or reject any executory contract. What section § 365 does not provide is a clear definition for the term “executory contract.” This thesis covers the different definitions of executory contracts proposed by courts and scholars and common grounds for assumption and rejection by the trustee. The author in particular analyzes how § 365 interacts with licensing agreements. If a licensor files for bankruptcy and the license agreement is rejected, the licensee’s rights to use the licensed intellectual property are in jeopardy. This situation is …
Bankruptcy Judges, United States Trustees, And Family Farmer Bankruptcy Act Of 1986, Moussa Ismael Abojhanim
Bankruptcy Judges, United States Trustees, And Family Farmer Bankruptcy Act Of 1986, Moussa Ismael Abojhanim
LLM Theses and Essays
The Bankruptcy Judges, United States Trustees, and Family Farmer Bankruptcy Act of 1986, enacted as Public Law No. 99-554, introduced Chapter 12 to the Bankruptcy Code specifically aimed at providing debt relief to family farmers. This thesis explores providing debt relief to family farmers. It also explores the background leading to the enactment of Chapter 12, including the economic challenges faced by American family farmers in 1970s and 1980s. Additionally, it discusses the legislative history, congressional response, and the provisions of Chapter 12, noting its advantages over chapter 11 and 13 for family farmers in reorganizing their finances and maintaining …
United States Government Contract: The Unilateral Act Of Government Contracting, Sawvalak Chulpongstorn
United States Government Contract: The Unilateral Act Of Government Contracting, Sawvalak Chulpongstorn
LLM Theses and Essays
The debarment, suspension, and termination of the Government contract can cause a sudden financial ruin or bankruptcy of the contractor. Consequently, the question of whether the Government’s debarment, suspension, and termination is proper can be of vital importance. This thesis, in consequence, will focus on two major problem areas of the unilateral act of the government in contracting with the contractor. The first problem area is whether the debarment and suspension meet the requirement of due process of law. The second problem area is whether or not the government’s right to terminate the contract is proper or legal in specific …