Law Commons^™

Expanding The Settlement Payments Exception In Lbo’S, Matthew Mcnamara

Bankruptcy Research Library

(Excerpt)

This memorandum will first give a statutory background of relevant bankruptcy code provisions and their effects on the bankruptcy proceeding. Next, the memorandum will present description of pertinent cases related to the 546(e) ‘settlement payment’ exemption. In particular, the memorandum will document the progression of cases interpreting the meaning of ‘settlement payment’ within 546(e) from a restrictive interpretation to an increasingly broad one. Finally, the memorandum will discuss the case Brandt v. B.A. Capital (In re Plassein International) and its implication on the 546(e) exemption in relation to transfers of stock made in an LBO for publicly-held …

Repossession Does Not Alter Debtor’S Rights In Collateral, Ian Park

Bankruptcy Research Library

(Excerpt)

Does section 541(a)(1) of title 11 of the U.S. Code, which defines a debtor’s bankruptcy “estate,” include collateral which has been lawfully repossessed by secured creditors pursuant to Article 9 of the Uniform Commercial Code (“UCC”) prior to the debtor’s filing for bankruptcy? The courts have split in answering this pro-debtor issue by defining “estate” differently. Recently, in Tidewater Fin. Co. v. Curry (In re Curry), 509 F.3d 735, 735 (6th Cir. 2007), the Sixth Circuit Court of Appeals split with the Fourth and Eleventh Circuits and held that a secured creditor’s repossession of collateral under the state’s …

Giant Eagle, Inc. V. Phar-Mor, Inc., Courtney Pasquariello

Bankruptcy Research Library

(Excerpt)

Although under Pennsylvania common law a lessor has a duty to mitigate damages and is unable to claim damages that could have been avoided, no legal proposition exists that an injured lessor who attempts mitigation of damages resulting from a lessee’s misconduct must bear the consequences of a failed effort. Although the lessor received partial mitigation of a claim against a liable lessee, the lessee nonetheless remains liable for his previous breach.

Pension Benefit Guaranty Corporation’S Termination Premiums Constitute Dischargeable Pre-Petition Contingent Claims, Thomas Rooney

Bankruptcy Research Library

(Excerpt)

In Oneida Ltd. v. Pension Benefit Guaranty Corp., the U.S. Bankruptcy Court for the Southern District of New York addressed the issue of whether a debtor’s liability for pension termination premiums (“DRA Premiums”) constituted a pre-petition contingent “claim” and was, therefore, dischargeable pursuant to the debtor’s reorganization plan confirmation. 383 B.R. 29, 32 (Bankr. S.D.N.Y. 2008). The Bankruptcy Court held that the debtor’s liability for DRA premiums was a dischargeable pre-petition “claim” even though the pension termination occurs during the debtor’s chapter 11 case. Id. at 32, 43.

The Bankruptcy Court based its holding on three determinations: (1) …

Bapcpa Does Not Require The Chapter 13 Means Test In Individual Chapter 11 Cases, Steven Saal

Bankruptcy Research Library

(Excerpt)

The Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPCPA”) was implemented in order to prevent debtors from unjustly shielding value in their estate from deserving creditors and thus abusing the functionality of the federal bankruptcy system. Specifically, one problem perceived to be very prevalent was a practice by individual debtors who would seek to avoid the stringent guidelines of the “means test” in Chapter 13 cases by running for the protection of the more relaxed standards in Chapter 11 cases. The BAPCPA Amendments to section 1129 of the Bankruptcy Code were adopted to institute stricter standards in Chapter 11 …

Early Retirement Benefits Not Entitled To Severance Priority, Joe Scolavino

Bankruptcy Research Library

(Excerpt)

In Supplee v. Bethlehem Steel Corp (In re Bethlehem Steel Corp.), 479 F.3d 167 (2d Cir. 2007), the Second Circuit Court of Appeals addressed the issue of whether early retirement benefits triggered by severance are entitled to administrative expense treatment. The court held that that early retirement benefits are not entitled to severance priority. While the Second Circuit generally treats severance payments as priority administrative expenses when employment is terminated during the employer’s bankruptcy, Bethlehem determined that lump-sum retirement benefits for which the employee became eligible at termination did not constitute a new benefit earned at termination, …

American Home Mortgage, Holdings, Inc. V. Lehman Brothers Inc., Valerie Sokha

Bankruptcy Research Library

(Excerpt)

The derivatives provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) amendments greatly enlarged the scope of the financial contracts that are shielded from traditional bankruptcy limitations such as the automatic stay and the prohibition on ipso facto clauses. Those exceptions were reaffirmed in a strong anti-debtor opinion in Am. Home Mortg. Inv. Corp. v. Lehman Bros. (In re Am. Home Mortg. Holdings, Inc.), 388 B.R. 69 (Bankr. D. Del 2008). Although Lehman may now regret its victory since it is a debtor in its own bankruptcy case, it succeeded in defeating a number …

Discharge Under The Code For Erisa "Fiduciaries", Devin Sullivan

Bankruptcy Research Library

(Excerpt)

The Bankruptcy Code (“Code”) provides debtors with relief from many of their outstanding debts. However, even under the broad protection of the Code, some debts cannot be erased. Pursuant to section 523(a)(4) of the Code, an individual debtor may not discharge any debt for fraud or defalcation (unauthorized appropriation of money) while acting in a fiduciary capacity. 11 U.S.C. § 523(a)(4). The federal courts are currently split on the issue of whether a debtor who qualifies as a “fiduciary” under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1132 et seq, (“ERISA”) will also qualify as …

Can Software Be A Bankruptcy Petition Preparer?, Thomas Szaniawski

Bankruptcy Research Library

(Excerpt)

Recently, in Reynoso v. United States (In re Reynoso) — a case of first impression for the Ninth Circuit that addressed the intersection of cyberspace and bankruptcy — the court held that a provider of web-based bankruptcy software was a bankruptcy petition preparer (“BPP”) under 11 U.S.C. section 110 and that under California law, the features and functionality of the software went beyond mere typesetting and constituted the unauthorized practice of law. Reynoso v. United States (In re Reynoso), 477 F.3d 1117 (9th Cir. 2007). In re Reynoso is significant because prior to this …

Of Sweatshops And Human Subsistence: Habermas On Human Rights, David Ingram

Philosophy: Faculty Publications and Other Works

In this paper I argue that the discourse theoretic account of human rights defended by Jürgen Habermas contains a fruitful tension that is obscured by its dominant tendency to identify rights with legal claims. This weakness in Habermas’s account becomes manifest when we examine how sweatshops diminish the secure enjoyment of subsistence, which Habermas himself (in recognition of the UDHR) recognizes as a human right. Discourse theories of human rights are unique in tying the legitimacy of human rights to democratic deliberation and consensus. So construed, their specific meaning and force is the outcome of historical political struggle. However, unlike …

Medimmune V. Genentec, Kelly Casey Mullally, Gregory Castanias, Franklin E. Gibbs

Journal of Business & Technology Law

No abstract provided.

Patents Are Property: A Fundamental But Important Concept, Andrew Beckerman-Rodau

Journal of Business & Technology Law

No abstract provided.

Ebay V. Mercexchange And Quanta Computer V. Lg Electronics, Andrew Beckerman-Rodau, F. Scott Kieff, Lawrence M. Sung, Thomas Woolston

Journal of Business & Technology Law

No abstract provided.

In The Wake Of Reinvigorated U.S. Supreme Court Activity In Patent Appeals, Lawrence M. Sung

Journal of Business & Technology Law

No abstract provided.

Weber V. U.S. Sterling Securities, Inc.: Contracting The Liability Shield For Members Of Delaware Limited Liability Companies, Marios J. Monopolis

Journal of Business & Technology Law

No abstract provided.

Attorney General's Authority To Defend Conservation Easements, Brian Eisenhower

Sea Grant Law Fellow Publications

No abstract provided.

Legal Beagle Blog (January 2009), Roger Williams University School Of Law Library

Law Library Newsletters/Blog

No abstract provided.

Aliens In The Garden, Jared A. Goldstein

Law Faculty Scholarship

This Article examines environmental rhetoric and argues that a nationalist conception of nature has long distorted environmental policies. Environmental discourse frequently seeks to explain the natural world by reference to the world of nations, a phenomenon that can be characterized as the “nationalization of nature.” A contemporary example of the nationalization of nature is the rhetoric of “invasive species,” which depicts harmful foreign plants and animals in ways that bear an uncanny resemblance to the demonization of foreigners by opponents of immigration. A typical newspaper article about invasive species, bearing the headline “Eeeeek! The eels are coming!,” warned about an …

The Method And Role Of Comparative Law, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

Money As Simulacrum: The Legal Nature And Reality Of Money, John J. Chung

Law Faculty Scholarship

No abstract provided.

Online Child Sexual Abuse: The French Response, Mohamed Chawki

Journal of Digital Forensics, Security and Law

Online child sexual abuse is an increasingly visible problem in society today. The introduction, growth and utilization of information and telecommunication technologies (ICTs) have been accompanied by an increase in illegal activities. With respect to cyberspace the Internet is an attractive environment to sex offenders. In addition to giving them greater access to minors, extending their reach from a limited geographical area to victims all around the world, it allows criminals to alter or conceal their identities. Sexual predators, stalkers, child pornographers and child traffickers can use various concealment techniques to make it more difficult for investigators to identify them …

Bluetooth Hacking: A Case Study, Dennis Browning, Gary C. Kessler

Journal of Digital Forensics, Security and Law

This paper describes a student project examining mechanisms with which to attack Bluetooth-enabled devices. The paper briefly describes the protocol architecture of Bluetooth and the Java interface that programmers can use to connect to Bluetooth communication services. Several types of attacks are described, along with a detailed example of two attack tools, Bloover II and BT Info.

Table Of Contents

Journal of Digital Forensics, Security and Law

No abstract provided.

To License Or Not To License Revisited: An Examination Of State Statutes Regarding Private Investigators And Digital Examiners, Thomas Lonardo, Doug White, Alan Rea

Journal of Digital Forensics, Security and Law

In this update to the previous year's study, the authors examine statutes that regulate, license, and enforce investigative functions in each US state. After identification and review of Private Investigator licensing requirements, the authors find that very few state statutes explicitly differentiate between Private Investigators and Digital Examiners. After contacting all state agencies the authors present a distinct grouping organizing state approaches to professional Digital Examiner licensing. The authors conclude that states must differentiate between Private Investigator and Digital Examiner licensing requirements and oversight.

The Impact Of Hard Disk Firmware Steganography On Computer Forensics, Iain Sutherland, Gareth Davies, Nick Pringle, Andrew Blyth

Journal of Digital Forensics, Security and Law

The hard disk drive is probably the predominant form of storage media and is a primary data source in a forensic investigation. The majority of available software tools and literature relating to the investigation of the structure and content contained within a hard disk drive concerns the extraction and analysis of evidence from the various file systems which can reside in the user accessible area of the disk. It is known that there are other areas of the hard disk drive which could be used to conceal information, such as the Host Protected Area and the Device Configuration Overlay. There …

The Influence Of Marcus Tullius Cicero On Modern Legal And Political Ideas, Mortimer N.S. Sellers

All Faculty Scholarship

Marcus Tullius Cicero is the father of modern law and politics. Cicero's influence was significant throughout subsequent European history, but never so much nor so directly as in the emergence of modernity and in the development of modern law and constitutional government. The early moderns became faithful apostles of Cicero's thought and ideals because their world and political circumstances were in many ways closer to those of Cicero than to those of any intervening centuries. The influence of Cicero's legal and political ideas on the modern world illustrates the decisive importance that the study of history can have on legal …

A House Divided: Earl Caldwell, The New York Times, And The Quest For A Testimonial Privilege, Eric Easton

All Faculty Scholarship

In the 1972 case of Branzburg v. Hayes, the Supreme Court held that the First Amendment does not protect journalists who refuse to reveal their confidential sources or news gathering product in response to a federal grand jury subpoena. That decision has remained vital for 35 years and has reverberated through a number of recent high-profile cases. Despite some form of protection in nearly every state court, reporters haled before a federal judge may have no recourse save prison. Devastating as Branzburg has been for the so-called journalist's privilege, its negative impact has been far broader. Branzburg is one of …

Introductory Note To Dispute Regarding Navigational And Related Rights (Costa Rica V. Nicaragua), International Court Of Justice, Judgment Of 13 July 2009, Nienke Grossman

All Faculty Scholarship

The Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua) concerns the rights of Nicaragua and Costa Rica over part of the San Juan River, located in the territory of the former, but whose right bank and certain navigational rights belong to the latter. In its July 13, 2009 Judgment, the International Court of Justice ("ICJ") made a number of specific rulings regarding the scope of Costa Rica's right to free navigation, Nicaragua's power to regulate that right, and Costa Rican riparians' subsistence fishing rights. Aside from its immediate significance for the litigating parties, the Judgment is noteworthy for …

An Open Letter From Heaven To Barack Obama, F. Michael Higginbotham

All Faculty Scholarship

Since the passing of A. Leon Higginbotham, Jr. in 1998, many have wondered what the award winning author, longest-serving black federal judge, first black to head a federal regulatory agency, recipient of the Spingarn Medal and the Congressional Medal of Freedom, and author of the famous “Open Letter to Clarence Thomas” would think of the state of race relations today. Appointed to the Federal Trade Commission in 1962, Higginbotham served in several powerful federal positions including Vice-Chairman of the National Commission on the Causes and Prevention of Violence, member of the first wiretap surveillance court, and chief judge of a …

Foreword Symposium: Having It Our Way: Women In Maryland's Workplace Circa 2027, Margaret E. Johnson

All Faculty Scholarship

On November 14, 2007, the University of Baltimore School of Law, the University of Maryland School of Law and the Women's Law Center of Maryland co-sponsored a symposium entitled "Having it Our Way: Women in Maryland's Workplace Circa 2027." The insightful collection of papers in this volume of the University of Maryland Law Journal of Race, Religion, Gender and Class represents the work of employment law scholars, public policy specialists, and activists who presented on the current state of Maryland employment law and discussed Maryland's future. This distinguished group of experts and scholars present several themes: the hope of new …