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Unexpected Gifts Of Chapter 11: The Breach Of A Director's Duty Of Loyalty Following Plan Confirmation And The Postconfirmation Jurisdiction Of Bankruptcy Courts, Daniel Bogart
Daniel B. Bogart
This article addresses the intersection of two aspects of chapter 11 jurisprudence: the fiduciary duties of directors and officers of the debtor and the post confirmation jurisdiction of bankruptcy courts. The article suggests that the normal application of fiduciary duties to confirmed debtors creates particular opportunities for directors and officers to act in a disloyal manner. The article examines two cases in particular. These include Bernstein v. Donaldson (In re Insulfoams, Inc.) and Cumberland Farms, Inc. v. Hasenotes (In re Cumberland Farms, Inc.) Traditionally, courts and commentators suggest that normal state fiduciary standards govern directors post confirmation. The article argues, …
Finding The Still Small Voice: The Liability Of Bankruptcy Trustees And The Work Of The National Bankruptcy Review Commission, Daniel Bogart
Finding The Still Small Voice: The Liability Of Bankruptcy Trustees And The Work Of The National Bankruptcy Review Commission, Daniel Bogart
Daniel B. Bogart
This article examines section 3.3.2 of the Report of the National Bankruptcy Review Commission. That section proposed altering the Bankruptcy Code to clarify the law governing the liability and fiduciary obligations of trustees in bankruptcy. The article was prepared in connection with a symposium evaluating the Commission's Report held at Dickinson Law School. The Commission issued its Report on October 20, 1997, following many months of controversy, heated hearings and significant public debate. The article argues that section 3.3.2 represents a failure of the drafter to understand and delineate the two basic doctrines of fiduciary law and derived judicial immunity. …