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Full-Text Articles in Law

Bankruptcy Grifters, Lindsey Simon Jan 2022

Bankruptcy Grifters, Lindsey Simon

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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” …


Claim Preclusion And The Problem Of Fictional Consent, Lindsey Simon Jan 2020

Claim Preclusion And The Problem Of Fictional Consent, Lindsey Simon

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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, …


Chapter 11 Shapeshifters, Lindsey Simon Jan 2016

Chapter 11 Shapeshifters, Lindsey Simon

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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 …


The Case For Value Billing In Chapter 11, Nancy B. Rapoport Jan 2012

The Case For Value Billing In Chapter 11, Nancy B. Rapoport

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This article explores the forces contributing to very high professional fees in large Chapter 11 cases and suggests that lawyers might want to consider valuing their services in ways other than the traditional billable hour approach.


Vacating Chrysler, George Kuney Jun 2010

Vacating Chrysler, George Kuney

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This article examines the Chrysler section 363 transaction and the opinions that approved it. Chrysler may be merely another example of good facts and a crisis making what is, perhaps, bad law, which has been a pattern in the evolution of chapter 11 jurisprudence since the Bankruptcy Code was enacted in 1978. The Supreme Court appears to have recognized this in the Chrysler case and took the opportunity created by the petition for the certiorari to attempt to wipe the slate clean and reestablish the pre-Chrysler status quo. If this was the Justices’ intent, it is not clear that they …


Non-Debtor Releases And Travelers V. Bailey: A Circuit Split That Is Likely To Remain, George Kuney Mar 2010

Non-Debtor Releases And Travelers V. Bailey: A Circuit Split That Is Likely To Remain, George Kuney

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The Travelers Indemnity Company v. Bailey, 129 S.Ct. 2195 (2009), presented the Supreme Court with the opportunity to review and decide the issue of whether or not bankruptcy courts have jurisdiction to release non-debtors from claims of other non-debtors that have no impact upon and are not derived from the res of the bankruptcy estate. Instead of reaching the question, however, the Court, in an opinion authored by Justice Souter and joined in by Justices Roberts, Scalia, Kennedy, Thomas, Breyer, and Alito, disposed of the case under the principles of res judicata and the bar on collaterally attacking a final …


Debtor Counsel's Fiduciary Duty: Is There A Duty To Rat In Chapter 11?, Nancy B. Rapoport, C. R. Bowles Jan 2010

Debtor Counsel's Fiduciary Duty: Is There A Duty To Rat In Chapter 11?, Nancy B. Rapoport, C. R. Bowles

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This article discusses what duties counsel to the debtor-in-possession owe (and to whom they owe these duties) when the debtor-in-possession wants to do something illegal or just plain dumb.


Rethinking Professional Fees In Chapter 11 Cases, Nancy B. Rapoport Jan 2010

Rethinking Professional Fees In Chapter 11 Cases, Nancy B. Rapoport

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This article discusses the many ways in which professional fees can spiral out of control in chapter 11 bankruptcy cases and evaluates the possible ways to monitor and control those fees.


Unethical Protection? Model Rule 1.8(H) And Plan Releases Of Professional Liability, George Kuney Jul 2009

Unethical Protection? Model Rule 1.8(H) And Plan Releases Of Professional Liability, George Kuney

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The American Bar Association’s Model Rules of Professional Conduct address the propriety of attorneys obtaining releases from their clients of either past claims or future claims against themselves. Under the applicable Model Rule, both types of releases require the involvement, or the opportunity for involvement, of independent counsel to review and advise the client on the issue.

Releases in chapter 11 plans typically cover insiders, members of the creditors’ committee, and the debtor’s and committee’s counsel. Few courts or disciplinary bodies of the various state bars have addressed the ethical issues that arise when counsel insert into a plan of …


Hijacking Chapter 11, George Kuney Jan 2004

Hijacking Chapter 11, George Kuney

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No abstract provided.


Misinterpreting Bankruptcy Code Section 363(F) And Undermining The Chapter 11 Process, George Kuney Apr 2002

Misinterpreting Bankruptcy Code Section 363(F) And Undermining The Chapter 11 Process, George Kuney

Scholarly Works

No abstract provided.


"Retail Choice" Is Coming: Have You Hugged Your Utilities Lawyer Today? (Part Ii), Nancy B. Rapoport, Jeffrey D. Van Niel Jan 2002

"Retail Choice" Is Coming: Have You Hugged Your Utilities Lawyer Today? (Part Ii), Nancy B. Rapoport, Jeffrey D. Van Niel

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This part of the article provides a discussion on the intersection of utilities law and bankruptcy law, pre-BAPCPA. (Part I provides a primer on the history of utilities regulation.)


The Intractable Problem Of Bankruptcy Ethics: Square Peg, Round Hole, Nancy B. Rapoport Jan 2002

The Intractable Problem Of Bankruptcy Ethics: Square Peg, Round Hole, Nancy B. Rapoport

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This article continues my earlier research on conflicts of interest in bankruptcy cases, particularly in chapter 11 cases. It suggests that conflicts in interest in chapter 11 bankruptcy cases should not be handled the same way that conflicts are handled under state ethics rules, and it proposes a new section of the Bankruptcy Code to cover conflicts of interest in cases filed under chapter 11.


"Retail Choice" Is Coming: Have You Hugged Your Utilities Lawyer Today? (Part I), Nancy B. Rapoport, Jeffrey D. Van Niel Jan 2002

"Retail Choice" Is Coming: Have You Hugged Your Utilities Lawyer Today? (Part I), Nancy B. Rapoport, Jeffrey D. Van Niel

Scholarly Works

This part of the article provides a primer on the history of utilities regulation. (Part II provides a discussion on the intersection of utilities law and bankruptcy law, pre-BAPCPA.)


Has The Dip's Attorney Become The Ultimate Creditors' Lawyer In Bankruptcy Reorganization Proceedings?, Nancy B. Rapoport, C. R. Bowles Jan 1997

Has The Dip's Attorney Become The Ultimate Creditors' Lawyer In Bankruptcy Reorganization Proceedings?, Nancy B. Rapoport, C. R. Bowles

Scholarly Works

This article discusses the issues facing the lawyer for the estate in a bankruptcy case. It debunks the idea that the lawyer for the estate represents any single constituency, and it tries to redefine the fiduciary duties that the estate lawyer has to the bankruptcy estate.