Law Commons^™

An Approach To The Regulation Of Spanish Banking Foundations, Miguel Martínez

Miguel Martínez

The purpose of this paper is to analyze the legal framework governing banking foundations as they have been regulated by Spanish Act 26/2013, of December 27th, on savings banks and banking foundations. Title 2 of this regulation addresses a construct that is groundbreaking for the Spanish legal system, still of paramount importance for the entire financial system insofar as these foundations become the leading players behind certain banking institutions given the high interest that foundations hold in the share capital of such institutions.

Making Sense Of Successor Liability, Marie T. Reilly

Marie T. Reilly

A firm that buys assets from another firm ordinarily does not acquire liability to the seller's creditors simply by buying its assets. This ordinary rule is subject to important exceptions. The buyer's consent triggers an exception. If a buyer agrees to assume the seller's liability to third parties, it is for that reason liable. This article considers a more controversial exception - successor liability. When a court decides that an asset acquirer should be treated as a "successor" to the transferor, it is liable for the transferor's debts as though it were the transferor.

Resituating The Automatic Stay Within The Federal Common Law Of Bankruptcy, Daniel J. Sheffner

Daniel Sheffner

Many bankruptcy judges and practitioners make broad references to the equitable powers of bankruptcy courts. Bankruptcy courts, they exclaim, are “courts of equity” and so may do as “equity” requires. One often-cited source of bankruptcy courts’ apparently vast equitable and supplemental powers is § 105(a) of the Bankruptcy Code. Section 105(a) empowers bankruptcy courts to “issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of” the Code. Section 105(a) has been cited as the basis for re-imposing the Bankruptcy Code’s automatic stay once the stay has been terminated or otherwise modified. The automatic …

Identifying The Honest Debtor: Section 727(A)(4)(A) Of The Bankruptcy Code And The Need For Consistency In Denial Of Discharge Proceedings, Andrew F. Emerson

Andrew Emerson

No abstract provided.

Identifying The Honest Debtor: Section 727(A)(4)(A) Of The Bankruptcy Code And The Need For Consistency In Denial Of Discharge Proceedings, Andrew F. Emerson

Andrew Emerson

No abstract provided.

Examining Success, Jonathan C. Lipson

Jonathan C. Lipson

Chapter 11 of the Bankruptcy Code presumes that managers will remain in possession and control of a corporate debtor. This presents an obvious agency problem: these same managers may have gotten the company into trouble in the first place. The Bankruptcy Code thus includes checks and balances in the reorganization process, one of which is supposed to be an “examiner,” a private individual appointed to investigate and report on the debtor’s collapse.

We study their use in practice. Extending prior research, we find that examiners are exceedingly rare, despite the fact that they should be “mandatory” in large cases ($5 …

Flexible Finality In Bankruptcy: The Right To Appeal A Denial Of Plan Confirmation, Joseph L. Nepowada

Joseph L Nepowada

This Article examines the current state of the law interpreting what “finality” means in context of a bankruptcy proceeding and what effect that interpretation has on the appealability of certain orders, such as the denial of plan confirmation under a Chapter 13 bankruptcy proceeding. The article highlights nine courts of appeals and their decisions concerning the appealability of a denial of a plan confirmation and it is apparent that the courts are split with three courts of appeal allowing a debtor to appeal a denial of plan confirmation as a matter of right, while six courts of appeal will deny …

Worlds Colliding: Competition Policy And Bankruptcy Fire Sales, Max Huffman

Max Huffman

Modern business bankruptcies commonly involve mergers and acquisitions pursued as “fire sales.” The bankruptcy forum and the unique incentives bankruptcy creates allow those acquisitions to take place with reduced constituent involvement and regulatory oversight. Those fire sale transactions may present antitrust concerns where they lead to undue concentration in the relevant marketplace. This paper studies the poorly explored tension between bankruptcy law, which favors mergers and acquisitions as value-maximizing propositions and creates opportunity for fire sales, and antitrust law, which disfavors combinations leading to undue concentrations of economic power. The substantial tension manifests both as a matter of substantive law …

Reforming Preference Law, Dalie Jimenez

Dalie Jimenez

This article responds to Brook Gotberg's proposal to do away with preference liability in certain Chapter 11 cases and provides empirical evidence of preferential transfers in consumer Chapter 7 cases.

Liquidity, Systemic Risk, And The Bankruptcy Treatment Of Financial Contracts, Riz Mokal

Riz Mokal

Reward The Stalking Horse Or Preserve The Estate: Determining The Appropriate Standard Of Review For Awarding Break-Up Fees In § 363 Sales, Zachary Frimet

Zachary Frimet

Following the surge of bankruptcies in the wake of the Great Recession, a growing and somewhat controversial trend has emerged whereby companies seeking to purchase a debtor’s assets in bankruptcy frequently make use of Section 363 of the United States Bankruptcy Code (“§ 363”). In general, § 363 sales are accomplished via public auction. This aspect of § 363 exposes initial bidders, known in bankruptcy as “stalking horses bidders”, to the risk that they will commit time and resources in pursuit of the acquisition and yet fail to succeed as the prevailing bidder. To hedge against this risk, stalking horse …

The Saga Of Income From Income-Producing Collateral Treatment In Bankruptcy For Undersecured Creditors, Ian D. Ghrist

Ian D. Ghrist

Abstract

Who gets the income from income-producing collateral during bankruptcy—the debtor or the undersecured creditor? Throughout the history of bankruptcy law in America, this question has not had a bright-line answer. It is one of those indelible questions whose answer lies even to this day within the equitable power of courts of equity. In 2014, the First Circuit looked at this question and adopted the Fifth Circuit’s “flexible approach.”

With the flexible approach growing in popularity, the lower courts’ tendency to adopt rigid valuation methodologies should fade. Instead of taking positions on either the addition method or the subtraction method, …

The Virtue In Bankruptcy, Matthew Adam Bruckner

Matthew Adam Bruckner

In response to a gap in the corporate bankruptcy literature, this Article offers a new positive theory of corporate bankruptcy law based on virtue ethics. The dominant theory of corporate bankruptcy law—the creditors’ bargain model—is necessarily incomplete because it does not account for bankruptcy courts’ equitable and discretionary powers, or for bankruptcy courts’ need to consider decision-making criteria other than economic efficiency. By contrast, virtue ethics offers insights about these features of corporate bankruptcy law for at least three reasons. First, bankruptcy courts appear to give content to bankruptcy laws by using virtue ethical principles. Second, virtue ethics’ decision-making process—practical …

Too Complex To Perceive?: Drafting Cash Distribution Waterfalls Directly As Code To Reduce Complexity And Legal Risk In Structured Finance, Master Limited Partnership, And Private Equity Transactions, Ralph Carter Mayrell

Ralph Carter Mayrell

The intricate procedural and data-driven decision trees that play a critical role in complex financial contracts like cash distribution waterfalls in structured finance agreement indentures (e.g., collateralized debt obligations (CDOs)), master limited partnership agreements, and private equity fund agreements are inefficiently depicted as written contracts. As Professor Henry Hu explains in Too Complex to Depict?, the difficulty of translation—or depiction—between original mathematical models, plain English prospectuses, legal contracts, and programmed execution means that often the written depictions that form the basis of disclosures do not accurately define the act of execution. To overcome this, the SEC proposed an amendment to …

Negative Externalities And Subprime Auto Financing: Time To Let The Hanging Paragraph Go(2), Chunlin Leonhard

Chunlin Leonhard

Economists generally agree that when private transactions generate negative externalities (i.e. unintended harmful byproduct), government intervention is potentially necessary. Negative externalities are considered socially inefficient because they destroy market supply and demand equilibrium. The existence of negative externalities is therefore one of those rare occasions when government intervention in private transactions is justified. It follows that when the government does choose to intervene, its goal should be to remedy, not to encourage, negative externalities. This article identifies one bankruptcy rule, commonly known as the Hanging Paragraph in the Bankruptcy Code, 11 U.S.C. § 1325(a)(9), that violates the basic principle of …

The Economics And Regulation Of Network Branded Prepaid Cards, Todd J. Zywicki

Todd J. Zywicki

General-purpose reloadable prepaid cards have been one of the fastest-growing sectors of the consumer payments marketplace in recent years. Their importance has accelerated as a consequence of new regulations enacted in the wake of the 2008 financial crisis. This increased use of prepaid cards has also increased angst among regulators, especially regarding the number and size of fees on prepaid cards. State and federal regulators as well as Congress are interested in imposing new regulations on prepaid cards. These calls for regulation, however, have proceeded in a largely fact-free environment. This paper describes the current economic and regulatory landscape for …

The Debtor Class, Kara J. Bruce

Kara J. Bruce

In recent years, individuals seeking bankruptcy protection have encountered an unexpected harm: their lenders have misrepresented the amounts they owe, lost or misapplied their loan payments, and violated clear requirements of bankruptcy law and procedure. Recent investigations of consumer bankruptcy cases reveal widespread abuse of the bankruptcy code, ranging from the filing of unsupported or overinflated proofs of claim to violations of the automatic stay and discharge injunction. Such practices undermine consumer bankruptcy’s central goals to provide consumer debtors a fresh financial start and to achieve the fair treatment of and distribution of assets to creditors. Because many debtors affected …

What Determines Professionals’ Bankruptcy Fees: An Empirical Investigation, Gijs Van Dijk, Martin Gramatikov

Martin Gramatikov

Countries have adopted different approaches to compensate bankruptcy trustees for winding up the estate. The approaches vary from state trustees to funding mechanisms where bankruptcy trustees receive a fixed fee, to a system where their fees depend on the size of the assets. Few studies have addressed the cost-effectiveness of the different approaches. This study contributes to this topic by examining the fees of the winding up, including an analysis of the determinants of these fees. After analyzing 289 Dutch bankruptcies consisting of short-term and medium-term cases, we find substantial differences in the mean hourly remuneration fees of bankruptcy trustees. …