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The Power Struggle: Shareholder Rights In Brazilian Corporate Bankruptcy, Jessica Nowak 2018 University of Miami Law School

The Power Struggle: Shareholder Rights In Brazilian Corporate Bankruptcy, Jessica Nowak

University of Miami International and Comparative Law Review

No abstract provided.


Reflections On Two Years Of P.R.O.M.E.S.A., David A. Skeel Jr. 2018 University of Pennsylvania Law School

Reflections On Two Years Of P.R.O.M.E.S.A., David A. Skeel Jr.

Faculty Scholarship

This Essay draws both on my scholarly and on my personal experience as a member of Puerto Rico’s oversight board to assess the first two years of the Board’s existence. I begin in a scholarly mode, by exploring the question of where P.R.O.M.E.S.A., the legislation that created the Board, came from. P.R.O.M.E.S.A.’s core provisions are, I will argue, the product of two historical patterns that have emerged in responses to the financial distress of public entities in the United States. The first dates back to ...


Lessons For Academic Leaders From Modern Restructuring Practice, Robert K. Rasmussen 2018 University of Southern California

Lessons For Academic Leaders From Modern Restructuring Practice, Robert K. Rasmussen

University of Southern California Legal Studies Working Paper Series

Financial distress has hit higher education. More and more universities and colleges are facing existential challenges as the competition for a dwindling number of students has put a strain on revenues. Unlike leaders in other industries, the presidents and chancellors of a financially distressed institutions of higher education cannot explore the possibility of a Chapter 11 filing under the Bankruptcy Code to restructure their obligations so that they align better with their revenues. Federal law prohibits Title IV loans – the lifeblood of virtually every university and college – from being made to students who attend a school that is in an ...


Bankruptcy’S Uneasy Shift To A Contract Paradigm, David A. Skeel Jr., George Triantis 2018 University of Pennsylvania Law School

Bankruptcy’S Uneasy Shift To A Contract Paradigm, David A. Skeel Jr., George Triantis

Faculty Scholarship

The most dramatic development in twenty-first century bankruptcy practice has been the increasing use of contracts to shape the bankruptcy process. To explain the new contract paradigm—our principal objective in this Article-- we begin by examining the structure of current bankruptcy law. Although the Bankruptcy Code of 1978 has long been viewed as mandatory, its voting and cramdown rules, among others, invite considerable contracting. The emerging paradigm is asymmetric, however. While the Code and bankruptcy practice allow for ex post contracting, ex ante contracts are viewed with suspicion.

We next use contract theory to assess the two modes of ...


Debt Stigma And Social Class, Michael D. Sousa 2018 Seattle University School of Law

Debt Stigma And Social Class, Michael D. Sousa

Seattle University Law Review

For as long as creditors have been extending credit to consumer debtors, Western society has stigmatized those individuals who failed to repay their financial obligations or who found themselves swamped by unmanageable debt. Over the past three decades, scholars have studied whether the stigma surrounding indebtedness and bankruptcy has declined or increased in American society, mainly due to the sharp spike in consumer bankruptcy filings during the 1990s. These studies have resulted in a general debate over whether debt stigma still exists in society. Absent from the scholarly literature to date is an exploration of whether debtors from different social ...


The Husky Case: Fraud, Bankruptcy, And Veil Piercing, Harvey Gelb 2018 Brooklyn Law School

The Husky Case: Fraud, Bankruptcy, And Veil Piercing, Harvey Gelb

Brooklyn Journal of Corporate, Financial & Commercial Law

A recent Supreme Court decision, Husky International Electronics, Inc. v. Ritz, explores the meaning of the word “fraud” under a federal bankruptcy statutory section. That section uses the term “actual fraud,” and bears upon the question of whether a particular debt should be denied a discharge. The Court’s approach in defining fraud affords guidance to the question of defining fraud under other statutes. The Husky case also raised a veil piercing issue to be dealt with on remand. That issue involved the application of Texas statutory law precluding veil piercing in cases brought by contract creditors unless they were ...


Domestic Asset Tracing And Recovery Of Hidden Assets And The Spoils Of Financial Crime, Nathan Wadlinger, Carl Pacini, Nicole Stowell, William Hopwood, Debra Sinclair 2018 University of South Florida St. Petersburg

Domestic Asset Tracing And Recovery Of Hidden Assets And The Spoils Of Financial Crime, Nathan Wadlinger, Carl Pacini, Nicole Stowell, William Hopwood, Debra Sinclair

St. Mary's Law Journal

Abstract forthcoming


A Pro Debtor And Majority Approach To The "Automatic Stay" Provision Of The Bankruptcy Code—In Re Cowen Incorrectly Decided, Claudia A. Restrepo 2018 Boston College Law School

A Pro Debtor And Majority Approach To The "Automatic Stay" Provision Of The Bankruptcy Code—In Re Cowen Incorrectly Decided, Claudia A. Restrepo

Boston College Law Review

On February 27, 2017, in In re Cowen, the U.S. Court of Appeals for the Tenth Circuit held that only affirmative actions to either obtain possession or exercise control over property of the bankruptcy estate constitute violations of the automatic stay provision. In doing so, the court concluded that the passive retention of an asset that was acquired pre-petition was not a violation of the automatic stay, and that the creditor had no obligation to relinquish the asset to the bankruptcy estate. This Comment argues that the Tenth Circuit misinterpreted the automatic stay provision of the Bankruptcy Code, disregarding ...


Sare Manipulation: The Hurdles In Single-Asset Real Estate Cases, David R. Hague 2018 The Catholic University of America, Columbus School of Law

Sare Manipulation: The Hurdles In Single-Asset Real Estate Cases, David R. Hague

Catholic University Law Review

Section 1129 of the Bankruptcy Code allows a debtor to reorganize its plan. But a reorganization must first be approved by at least one “impaired class,” meaning one-half of those in the impaired class as well as two-thirds of the total amount of claims within the impaired class must vote “yes” to reorganization. Within this lens, the composition of the debtor’s classes has a substantial impact on whether a reorganization attempt will be successful. Clearly, this incentivizes debtors to group their claims in a way that maximizes their chances of gaining approval for reorganization.

As such, courts are now ...


Payments By Check As Voidable Preferences: The Impact Of Barnhill V. Johnson, Paulette J. Delk 2018 University of Maine School of Law

Payments By Check As Voidable Preferences: The Impact Of Barnhill V. Johnson, Paulette J. Delk

Maine Law Review

Under the Bankruptcy Reform Act of 1978 (the Code), the trustee in bankruptcy has the duty to seek to avoid “preferential” transfers of the debtor's property made ninety days or less before the date of the filing of the bankruptcy case. Because of the delay that may occur between the time a check in payment of a debt is delivered by the debtor and when it is honored by the drawee bank, determining when the transfer was made to the payee-creditor has been a difficult issue for courts to resolve. The Supreme Court recently addressed this problem when it ...


Unreasonably Risky: Why A Negligence Standard Should Replace The Bankruptcy Code's Fraudulent Intent Analysis For Gambling Debts, Spencer H. Newman 2018 University of Nevada, Las Vegas -- William S. Boyd School of Law

Unreasonably Risky: Why A Negligence Standard Should Replace The Bankruptcy Code's Fraudulent Intent Analysis For Gambling Debts, Spencer H. Newman

UNLV Gaming Law Journal

No abstract provided.


Formailzing Chapter 9'S Experts, Laura N. Coordes 2018 Arizona State University Sandra Day O'Connor College of Law

Formailzing Chapter 9'S Experts, Laura N. Coordes

Michigan Law Review

Chapter 9 of the U.S. Bankruptcy Code has many shortcomings. One of the most persistent, yet understudied, problems judges face in chapter 9 is also a problem that exists in other areas of bankruptcy law: the sheer difficulty of applying generalized plan confirmation standards to wildly different, highly specialized entities. In practice, judges have turned to experts—individuals well versed in municipal finance, mediation, and the particular debtor com-munity—to help overcome this problem in chapter 9. These experts often per-form critical roles in a municipal bankruptcy case, including conducting mediations, investigating the municipality’s finances, and even helping ...


Fiduciary Duties In Bankruptcy And Insolvency, John A. E. Pottow 2018 University of Michigan Law School

Fiduciary Duties In Bankruptcy And Insolvency, John A. E. Pottow

Law & Economics Working Papers

Insolvency law (bankruptcy law to some) moves so quickly in the cross-border realm that this piece's discussion, started in 2015, is probably already outdated. Nonetheless, I publish it unrepentently because it turns overdue attention to the role of soft law in this domain. Building on earlier work in which I address the role of incrementalism, I discuss the marked success of the UNCITRAL Model Law on Cross-Border Insolvency and its cognate Insolvency Regulation in the EU (the latter now into its "Recast"). As predicted/hoped, the EU Recast, joining other contemporaneous reform projects, is building upon the scaffolding of ...


Bankruptcy's Exceptions To Discharge: When Does A Statement About A Single Asset Respect The Debtor's Financial Condition?, Roman Ibragimov 2018 Boston College Law School

Bankruptcy's Exceptions To Discharge: When Does A Statement About A Single Asset Respect The Debtor's Financial Condition?, Roman Ibragimov

Boston College Law Review

Section 523(a)(2)(A) of the Bankruptcy Code provides that a debt is nondischargeable if it is obtained by “false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s . . . financial condition.” In 2017, in In re Appling, the United States Court of Appeals for the Eleventh Circuit held that a false oral statement by a debtor to his creditor regarding a single asset constituted a statement respecting the debtor’s financial condition, allowing the debtor to discharge his liability to pay the debt. This ruling deepened a split among the courts as to ...


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The Fresh Start Canon, Jonathon S. Byington 2018 University of Florida Levin College of Law

The Fresh Start Canon, Jonathon S. Byington

Florida Law Review

A primary policy of bankruptcy law is to give consumer debtors a “fresh start” by discharging their debt. A rival policy is that the discharge of debt is a selectively conferred privilege that is not granted in some situations. For example, society is unwilling to pardon debt related to embezzlement or a domestic-support obligation. This “discharge restrictions” policy is manifested in part by the Bankruptcy Code’s exceptions to discharge. The U.S. Supreme Court has repeatedly recognized the tension between the fresh start and discharge restriction policies. It has sought to achieve a fair balance between these policies by ...


Dawn Of The Debt: The Increasing Problem Of Creditors Infecting The Discharge Injunction With Zombie Debt, Micah A. Smart 2018 University of Maine School of Law

Dawn Of The Debt: The Increasing Problem Of Creditors Infecting The Discharge Injunction With Zombie Debt, Micah A. Smart

Maine Law Review

The discharge injunction is an integral aspect of the “fresh start” that bankruptcy affords to many debtors. But there has been a growing threat to the viability of the bankruptcy discharge: zombie debt! Just when honest but unfortunate debtors think they have finally laid their overdue financial obligations to rest and moved on with their lives, zombie debt comes back to life in form of outdated and misleading credit reports that some debt collectors have been using to coerce payment on debts that should have died years prior. This Article discusses the motivation behind these questionable collection tactics and potential ...


The Scope Of Section 316(B) After Marblegate, Marcel Kahan 2018 New York University

The Scope Of Section 316(B) After Marblegate, Marcel Kahan

New York University Law and Economics Working Papers

Section 316(b) of the Trust Indenture Act provides that right of any to receive payment of the principal and interest may not be impaired or affected without the holder’s consent. This article analyzes the recent case law on whether corporate restructurings that impair the practical ability of bondholders to obtain payment on their bonds violate Section 316(b) of the Trust Indenture Act. After concluding that the Court of Appeals for the Second Circuit was correct in confining the scope of Section 316(b) to formal amendments to core payment terms, the article turns to an issue left ...


A Bridge Over Troubled Waters - Resolving Bank Financial Distress In Canada, Janis P. Sarra 2018 Allard School of Law at the University of British Columbia

A Bridge Over Troubled Waters - Resolving Bank Financial Distress In Canada, Janis P. Sarra

Faculty Publications

Effective June 2017, Canada formalized its new resolution regime for “domestic systemically important banks”. This article examines the new resolution regime in the context of the early intervention program by the financial services regulator. The system offers a complex but integrated set of mechanisms to monitor the financial health of financial institutions, to intervene at an early stage of financial distress, and to resolve the financially distressed bank in a timely manner. Resolution is the restructuring of a financially distressed or insolvent bank by a designated authority. To “resolve” a bank is to use a series of tools under banking ...


The Empty Idea Of “Equality Of Creditors”, David A. Skeel Jr. 2018 University of Pennsylvania Law School

The Empty Idea Of “Equality Of Creditors”, David A. Skeel Jr.

Faculty Scholarship

For two hundred years, the equality of creditors norm—the idea that similarly situated creditors should be treated similarly—has been widely viewed as the most important principle in American bankruptcy law, rivaled only by our commitment to a fresh start for honest but unfortunate debtors. I argue in this Article that the accolades are misplaced. Although the equality norm once was a rough proxy for legitimate concerns, such as curbing self-dealing, it no longer plays this role. Nor does it serve any other beneficial purpose.

Part I of this Article traces the historical emergence and evolution of the equality ...


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