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An Innovative Framework: Evaluating The New German Business Stabilization And Restructuring Law (Starug), Andreas Rauch

Northwestern Journal of International Law & Business

This comment examines the restructuring framework, restrukturierungsgesetz (“StaRUG”), and argues that this new law represents an effective—albeit radical—departure from Germany’s previous, conservative insolvency regime. Passed in response to a 2019 EU Directive aimed at modernizing restructuring law Union-wide, and integrated into the German legal system against the backdrop of the COVID-19 pandemic, StaRUG and its ancillary reforms in other areas of German law create a restructuring proceeding that places a premium on a debtor’s continued business operations. Thus, in a striking shift from the traditional German approach to business distress, which strongly emphasized creditor rights, the new StaRUG focuses on …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Clarity About Comity: How Courts Have Attempted Greater Guidance For Chapter 15 Litigants, Sabrina Lieberman

Northwestern Journal of International Law & Business

Abstract

This note explores the development of courts’ refusal to extend comity to foreign representatives who have filed a proceeding under chapter 15 of the U.S. Bankruptcy Code. Congress adopted chapter 15 as part of a comprehensive 2005 bankruptcy reform. It allows foreign entities to receive protection under the U.S. Bankruptcy Code. In most cases, foreign representatives who file a chapter 15 proceeding are involved with ancillary insolvency proceedings outside the United States. There is often a question of how or if a U.S. court overseeing the chapter 15 proceeding will defer to a judgment or process within the foreign …

Blurring The Line Between Student And Employee: Exploitation Of For-Profit College Students, Michele Abatangelo

Touro Law Review

For decades, for-profit colleges throughout the United States have exploited their students through a predatory business model. In February 2022, the Education Department approved $415 million in borrower defense claims for nearly 16,000 students who attended for-profit schools finding that these schools misrepresented post-graduation employment prospects. For-profit colleges also use manipulative recruitment tactics such as targeted advertising of low-income and minority students and providing false information to prospective students about loan repayment obligations post-graduation. Some for-profit institutions also rely on student labor in their facilities rather than hiring paid employees. This review discusses why it is imperative that courts scrutinize …

Bankruptcy And The State, Adam Feibelman

Emory Bankruptcy Developments Journal

Anticipating a wave of bankruptcies caused by the economic and financial effects of the COVID-19 pandemic, numerous commentators proposed measures to expand the institutional capacity of the bankruptcy system. A number of these proposals would represent dramatic and systematic government involvement in the U.S. bankruptcy system. Such involvement by the government in the bankruptcy system is a topic that is largely ignored in the literature on bankruptcy. Where it is observed, it is generally criticized. Among other things, it sits uneasily with dominant theories of bankruptcy that assume the bankruptcy system should be driven by the interests of direct stakeholders …

Custodian Or Not: Scrivener's Error In A Bankruptcy Code Safe Harbor, Thomas E. Plank

Emory Bankruptcy Developments Journal

This Article analyzes a drafting error in the United States Bankruptcy Code that remained latent for 36 years until 2020. This drafting error limits a safe harbor that Congress enacted in 1984 and expanded in 2005 to protect an important segment of the securities and mortgage loan markets.

When a person becomes a debtor in bankruptcy, the Bankruptcy Code imposes an automatic stay on substantially all actions by creditors and other entities against the debtor or the debtor’s bankruptcy estate. It also abrogates contractual provisions, known as ipso facto clauses, that otherwise permit a party to terminate a contract because …

Bankruptcy And The Anti-Assignment Acts: A New Approach To The Issue Of Assumption And Assignability Of Government Contracts, Ha Khuong

Emory Bankruptcy Developments Journal

One of the most important and valuable tools that a business debtor has for reorganization under the bankruptcy proceedings is assuming and assigning executory contracts. However, circuit courts are divided on the issue of whether the Anti-Assignment Act, in conjunction with Section 365(c)(1)(A) of the Bankruptcy Code, prohibits the assumption of an executory government contract over the objection of the government where the contract is to be performed by the debtor-in-possession. Some circuit courts apply the “Hypothetical Test” which restricts a debtor-in-possession from assuming an executory contract over an objection if applicable law would bar assignment to a hypothetical third …

Having Your Cake And Eating It Too: Why Voluntary Post-Petition 401(K) Contributions Are Disposable Income, Austin S. Howell

Emory Bankruptcy Developments Journal

Following the 2005 amendments to the Bankruptcy Code, the majority of chapter 13 debtors have been successful in minimizing their repayment obligations to creditors while bolstering their financial stability during retirement. The Bankruptcy Code allows chapter 13 debtors to retain their assets and repay their debts to creditors using their earned income. Alternatively, debtors may simply avoid some of the liability by dedicating a portion of their earned income for reasonably necessary expenses. Judicial inconsistencies have emerged concerning whether voluntary post-petition 401(k) retirement contributions for chapter 13 debtors constitute disposable income in accordance with Sections 541(b)(7) and 1325(b) of the …

The "Ideal Debtor" And The "Traditional" American Household, A. Mechele Dickerson

Emory Bankruptcy Developments Journal

Laws that award governmental benefits reflect an archetype of the type of person deemed worthy of governmental assistance and generally favor and reward people who have specific personal attributes or who engage in activities deemed socially desirable. Just as the Bankruptcy Code favors the “Ideal Debtor,” state and federal laws favor and subsidize Americans who live in a “traditional household.” Historically, this household consisted of husbands who earned income in the paid labor market and wives who stayed home to provide unpaid care for their husbands and minor children. Households that deviated from that norm rarely received the full range …

Putting With A Pitching Wedge: Indiscriminating Termination Of The Automatic Stay, Lawrence Ponoroff

Emory Bankruptcy Developments Journal

The serial filing of chapter 13 cases solely for the purpose of frustrating and delaying foreclosure or other legitimate collection efforts, and with no serious intent to reorganize, has long been perceived as an abuse of the bankruptcy system requiring a fulsome response. In 2005 Congress seized on a solution involving withdrawal or withholding of the automatic stay. Since it is the existence of the stay that most prompts abusive filings, the solution seemed appropriate. It was not for a variety of reasons examined in this article, but most notably because not all serial filings are abusive, and the stay …

Rethinking Roadblocks To Municipal Bankruptcy, Tejas Dave

Emory Bankruptcy Developments Journal

This Comment argues that Congress should remove roadblocks that prevent municipalities from easily filing for bankruptcy. It shows that statutory and ad hoc roadblocks allow states and the federal government to exert excessive pressure on fiscally distressed municipalities. Further, while scholars claim that the Bankruptcy Code provides bankruptcy courts with too little power to adjudicate municipal bankruptcies and that municipal fiscal distress should be resolved by states, this Comment argues that federal bankruptcy courts are the proper venue to resolve municipal distress and that these courts have sufficient power. This power could be used more effectively by removing chapter 9’s …

One Size Does Not Fit All Leases—It's Time To Amend Bankruptcy Code Section 365, Rachel Hudson

Emory Bankruptcy Developments Journal

For far too long, Bankruptcy Code Section 365 has caused confusion among parties to oil and gas leases when one party files for bankruptcy. This section of the Bankruptcy Code is intended to provide relief to debtors who are party to an unexpired lease or an executory contract, allowing a debtor-in-possession or trustee to make the decision to either assume or reject the agreement. While this concept is straightforward for standard lease agreements and contracts, courts have struggled to determine whether oil and gas leases actually fall into the category of a “lease” per se, an executory contract, or neither. …

The Hardship Discharge And How It Can Improve Debtor Success, Abbie Schmadeke

Emory Bankruptcy Developments Journal

Chapter 13 bankruptcy has long been heralded as a moral alternative to chapter 7 liquidations. Despite this, success among chapter 13 debtors is limited, and debtors who opt for this route face other challenges. The hardship discharge allows chapter 13 debtors to receive a discharge of their debts without plan completion. While the provision has been a piece of the bankruptcy law for nearly a century, little research on its effects on debtors exists. The struggles that chapter 13 debtors face underlies the need for more research on the hardship discharge as a potential solution. This Comment seeks to utilize …