Law Commons^™

Equity, Punishment, And The Company You Keep: Discerning A Disgorgement Remedy Under The Federal Securities Laws, Theresa Gabaldon

GW Law Faculty Publications & Other Works

Since its inception in 1934, the Securities and Exchange Commission (the “Commission” or the “SEC”) has wielded statutory authority to seek injunctive relief for violations of the federal securities laws. Since 1970 courts have, at the Commission’s behest and without much analysis, ordered violators to disgorge profits – make that lots and lots of profits – gained in the course of their wrongdoing. In some instances, the profits are returned to victims. In others, either because the victims are too many and too scattered or because the violation is a victimless one such as engaging in bribery, the ill-gotten gains …

Enhanced Debriefings: A Toothless Mandate?, Steven L. Schooner

GW Law Faculty Publications & Other Works

This short piece discusses the (alleged) manner in which the Department of Defense (DoD) conducted the disappointed offeror's post-award debriefing following the award of the $10 billion, $10-year Joint Enterprise Defense Infrastructure (JEDI) cloud computing contracting opportunity. While the quality of DoD’s debriefing is unlikely to alter the outcome in the pending protest litigation, it seems inconsistent with policy, the current trend favoring greater transparency, and the recent Congressional mandate for “enhanced debriefings.”

The piece suggests that, consistent with decades of study and experience, debriefings make sense, but only if they are informative or, more to the point, responsive. Conversely, …

Misinformation Mayhem: Social Media Platforms’ Efforts To Combat Medical And Political Misinformation, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

Social media platforms today are playing an ever-expanding role in shaping the contours of today’s information ecosystem. The events of recent months have driven home this development, as the platforms have shouldered the burden and attempted to rise to the challenge of ensuring that the public is informed – and not misinformed – about matters affecting our democratic institutions in the context of our elections, as well as about matters affecting our very health and lives in the context of the pandemic. This Article examines the extensive role recently assumed by social media platforms in the marketplace of ideas in …

Maintaining The Delicate Balance Between Due Process And Protecting Reporting Students From Re-Traumatization During Cross-Examination: Title Ix Investigations In The Wake Of The Trump Administration's Proposed Regulations, Lauren Bizier

Roger Williams University Law Review

No abstract provided.

Cranston Police Retirees Action Comm. V. City Of Cranston, 208 A.3d 557 (R.I. 2019), Tyler Martin

Roger Williams University Law Review

No abstract provided.

First Women Lawyers In Rhode Island, Roger Williams University School Of Law

Roger Williams University Law Review

No abstract provided.

State V. Moten, 187 A.3d 1080 (R.I. 2018), Anna L. Kramer

Roger Williams University Law Review

No abstract provided.

Big Tech Makes Big Data Out Of Your Child: The Ferpa Loophole Edtech Exploits To Monetize Student Data, Amy Rhoades

American University Business Law Review

No abstract provided.

The Not-So-Free Spirit Of Coachella: Coachella's Overbearing Radius Clause And The Sherman Antitrust Act, Holly Santapaga

American University Business Law Review

No abstract provided.

A Broken Vesper: Questioning The Relevancy And Workability Of The Church Audit Procedures Act, Benjamin W. Akins

Seton Hall Journal of Legislation and Public Policy

No abstract provided.

Be Careful Where You Spit: Do Hipaa-Covered Genetic Tests Actually Provide Greater Privacy Protection To Consumers?, Emily B. Sklar

Seton Hall Journal of Legislation and Public Policy

No abstract provided.

Dog Whistle Politics: The Trump Administration's Influence On Hate Crimes, Susan V. Koski, Lp.D., Kathleen Bantley, Esq.

Seton Hall Journal of Legislation and Public Policy

No abstract provided.

Impact Of The Strict Scrutiny Standard Of Judicial Review On Abortion Legislation Under The Kansas Supreme Court’S Decision In Hodes & Nauser V. Schmidt, Elizabeth Kirk

Scholarly Articles

This paper is focused on a narrow matter, namely, the nature of the standard of judicial review adopted by the Kansas Supreme Court in Hodes & Nauser v. Schmidt. 2 The most important (and decisive) point to emphasize is that the standard of judicial review adopted by the court in Hodes is so rigorous that it is likely to unsettle existing abortion law in Kansas and result in a legal landscape for abortion in this state that is more permissive of abortion than either the current federal standard or the original federal standard established by Roe v. Wade.

In order …

The Traditions Of American Constitutional Law, Marc O. Degirolami

Scholarly Articles

This Article identifies a new method of constitutional interpretation: the use of tradition as constitutive of constitutional meaning. It studies what the Supreme Court means by invoking tradition and whether what it means remains constant across the document and over time. Traditionalist interpretation is pervasive, consistent, and recurrent across the Court's constitutional doctrine. So, too, are criticisms of traditionalist interpretation. There are also more immediate reasons to study the role of tradition in constitutional interpretation. The Court's two newest members, Justices Neil Gorsuch and Brett Kavanaugh, have indicated that tradition informs their understanding of constitutional meaning. The study of traditionalist …

Circuit Split As To Whether Rejection Of Power Purchasing Agreements Are Subject To Bankruptcy Court Or Ferc Jurisdiction, Gabriela Zapata

Bankruptcy Research Library

(Excerpt)

Chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) enables troubled enterprises to be restructured, so that they can operate successfully in the future. Under section 365 of the Bankruptcy Code, a debtor in possession may reject a contract subject to bankruptcy court approval. The Federal Energy Regulatory Commission (“FERC”), however, has “exclusive jurisdiction” over the transmission of electric energy in interstate commerce, including power purchase agreements (“PPAs”). Accordingly, there is a dispute as to whether the rejection of a PPA is subject to bankruptcy court or FERC approval.

This memorandum addresses how courts have …

The High Burden Of A “Minimal Standard Of Living” Under The First Prong Of The Brunner Test, Samantha Alfano

Bankruptcy Research Library

(Excerpt)

Under section 523(a)(8) of title 11 of the United States Code (the “Bankruptcy Code”), student loan debt is not dischargeable unless the debtor can show “undue hardship.” Courts have concluded that section 523(a)(8) creates a presumption that student loans are nondischargeable, finding that the burden of challenging this presumption rests upon the individual debtor. The United States Court of Appeals for the Second Circuit in Brunner v. New York State Higher Educ. Servs. Corp., articulated what has become the standard test (the “Brunner test”) for determining undue hardship. Subsequently, the Brunner test has been adopted by the …

Sdny Bankruptcy Judges Have Differing Views On A Bankruptcy Court’S Jurisdiction To Issue Third-Party Releases, Brandon Auerbach

Bankruptcy Research Library

(Excerpt)

Under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”), a debtor may receive a discharge from claims under its plan of reorganization. A chapter 11 discharge functions as a release of liability for the debtor. Often debtors attempt to include releases for non-debtor parties as part of their reorganization plans to preclude creditors from asserting claims against non-debtors. However, the Bankruptcy Code does not expressly provide for such “third party releases,” except in the context of asbestos cases. Nevertheless, bankruptcy courts have approved third-party releases in other circumstances. The courts, however, are divided as …

Inconsistent Standards To Approve A Settlement Under Rule 9019, Zach Benaharon

Bankruptcy Research Library

(Excerpt)

“Settlements and compromises are favored in bankruptcy as they minimize costly litigation and further parties’ interests in expediting the administration of the bankruptcy estate.” In accordance with this policy, Congress promulgated Federal Rule of Bankruptcy Procedure 9019 (the “Bankruptcy Rules”), which governs settlements in a bankruptcy case. Rule 9019 gives a bankruptcy judge discretion to approve a proposed settlement and states in relevant part, that: “[o]n motion by the trustee, the court may approve a compromise or settlement.” Rule 9019 applies to both settlements brought before the court on a standalone basis as well as those presented as part …

The In Pari Delicto Defense May Bar Trustees That Bring Claims Which Are Property Of The Estate Under 11 U.S.C. § 541(A), Carmine Broccole

Bankruptcy Research Library

(Excerpt)

The in pari delicto doctrine states that “[i]n a case of equal or mutual fault … the position of the [defending] party … is the better one.” This doctrine is guided by the premise that it is not within the purview of the court to resolve disputes among wrongdoers, and that denial of judicial relief in these instances effectively deters illegal activity. Within the bankruptcy context, “every Circuit to have considered the question has held that in pari delicto can be asserted against a trustee bringing a claim on behalf of a debtor in bankruptcy.”

Under Section 541(a)(1) of …

Trademarks Are “Intellectual Property” Under Bankruptcy Code Section 365(N), Emily Clark

Bankruptcy Research Library

(Excerpt)

Under section 365 of title 11 of the United States Code (the “Bankruptcy Code”) a trustee or a debtor-in-possession may reject an executory contract. Rejection has the same effect as a breach outside of bankruptcy; rejection does not rescind the rights that the contract previously granted or terminate the contract. Under section 365(n) of the Bankruptcy Code, a licensee of intellectual property may retain the right to use such intellectual property notwithstanding the rejection of such license provided it is an executory contract. A contract is executory when there is performance due, to some extent, from both parties. A …

The Two Approaches To Center Of Main Interest Timing Determination, John Freeze

Bankruptcy Research Library

(Excerpt)

Under Chapter 15 of title 11 of the United States Code (the “Bankruptcy Code”), a bankruptcy court may grant recognition to a “foreign main proceeding.” A foreign main proceeding is “a foreign proceeding pending in the country where the debtor has the center of its main interests." The Bankruptcy Code offers little in the way of a definition of a foreign main proceeding, only that “the debtor’s registered office . . . is presumed to be the center of the debtor’s main interests.” Thus, chapter 15 provides a rebuttable presumption that a foreign debtor’s center of main interest is …

Discharging Student Loan Debt Under Brunner: Interpreting The Second Prong’S “Additional Circumstances” Requirement, Emily Gault

Bankruptcy Research Library

(Excerpt)

Under title 11 of the United States Code (the “Bankruptcy Code”), an individual debtor is not entitled to a discharge of his or her student loan debt “unless excepting such debt from discharge…would impose an undue hardship on the debtor and the debtor’s dependents.” Because the Bankruptcy Code does not define the term “undue hardship,” the courts have applied a broad range of standards which has resulted in a “state of considerable confusion.” Currently, the majority of circuit courts have adopted the test formulated by the United States Court of Appeals for the Second Circuit to determine what qualifies …

The Brunner Test Imposes A High Burden To Discharge Student Loan Debt, Lindsey Haynes

Bankruptcy Research Library

(Excerpt)

The United States Bankruptcy Code (the “Code”) makes it more difficult to discharge student loan debt than other debts. Student loans are treated differently from other loans because they are presumptively nondischargable. The government wants to ensure young debtors with promising future income streams remain liable to preserve student loan funding in the future. More specifically, section 523(a)(8) of the Code prevents abuses of the educational loan system and protects the continued viability of student loan programs. But, if certain circumstances are proven, student loan debt can be discharged.

The Code states if repayment “would impose an undue hardship …

Relief Afforded To Debtor Clients Harmed By A Bankruptcy Petition Preparer's Fraudulent, Unfair, Or Deceptive Conduct, Kathryn M. Ingle

Bankruptcy Research Library

(Excerpt)

A "Bankruptcy Petition Preparer" (the "Preparer") is a non-attorney who assists pro se debtors in the preparation of bankruptcy petitions and documents related to filing for bankruptcy. Preparers are regulated under section 110 of title 11 of the United States Code the (the "Code"). This section of the Code severely limits the scope of a Preparer's duties. Preparers lack the same rigorous legal and ethical training acquired by bankruptcy attorneys; therefore, some Preparers try to take advantage of debtors who are often ignorant of the bankruptcy system. Section 110 of the Code outlines sanctions to deter Preparers from behaving …

The Objective Standard For Holding A Creditor In Civil Contempt For Violating A Discharge Order, Alexander Cirkovic Koban

Bankruptcy Research Library

(Excerpt)

An individual debtor is generally entitled to a discharge at the conclusion of a bankruptcy case. A discharge is a legal injunction that both releases the debtor from liability for most pre-bankruptcy debts and bars creditors from collecting any debt that has been discharged. A creditor that violates the discharge may be held in contempt and subject to sanctions by a court.

In Taggart v. Lorenzen, the Supreme Court set the standard for when to impose civil contempt, holding that “a court may hold a creditor in civil contempt for violating a discharge order if there is no …

The Scope And Retroactivity Of The Honoring American Veterans In Extreme Need “Haven” Act In Chapter 7 And Chapter 13 Bankruptcy Cases, Carole Ann Liscio

Bankruptcy Research Library

(Excerpt)

On August 23, 2019, President Donald J. Trump signed the Honoring American Veterans in Extreme Need Act (the “HAVEN Act”). Congress stated that the HAVEN Act’s purpose is to correct an “obvious inequity” in title 11 of the United States Code (the “Bankruptcy Code”) as it relates to veterans. The HAVEN Act is silent as to whether it applies retroactively. Certain courts, however, have explored the idea that it should apply to cases pending as of the HAVEN Act’s enactment.

This memorandum analyzes whether the HAVEN Act can be applied retroactively or only to cases filed following its enactment. …

Center Of Main Interest For Members Of A Group Of Companies, Loredana Miranda

Bankruptcy Research Library

(Excerpt)

Under Chapter 15 of title 11 of the United States Code (the “Bankruptcy Code”), a court can recognize a foreign bankruptcy, insolvency, or restructuring proceeding (i.e., a foreign proceeding) as either a “foreign main proceeding” or a “foreign nonmain proceeding.” The Bankruptcy Code defines a foreign main proceeding as “a foreign proceeding pending in the country where the debtor has the center of its main interests.” The Bankruptcy Code does not define the “center of main interest” or “COMI.” Thus, bankruptcy courts have formulated different definitions and factors to determine a debtor’s COMI.

Complex corporate structures have made it …

Luxurious Lifestyles Alone May Not Constitute A Lack Of Good Faith Under The Bankruptcy Code, Spencer Nelson

Bankruptcy Research Library

(Excerpt)

Luxurious lifestyles implicate a debtor’s good faith when applying for the protections provided under title 11 of the United States Code (the “Bankruptcy Code”). Typically, bankruptcy courts avoid making the debtor’s luxurious lifestyle, on its own, a determinative factor because the good faith (or bad faith) analysis is determined under a totality of the circumstances approach. A debtor with continuing expenses typically indicative of bad faith can maintain such expenses if the debtor has made other concerted efforts to repay creditors or can otherwise justify those expenses. What is required depends on whether the debtor is applying for protections …

Creditors Are Unable To Directly Assert Claims For Breach Of Fiduciary Duty Or Fraudulent Transfer Against Another Creditor When The Debtor Is In Bankruptcy, Anthony Norris

Bankruptcy Research Library

(Excerpt)

In order to effectuate the efficient resolution of bankruptcy proceedings, courts have followed the public policy of reducing the number of suits that are ancillary to a bankruptcy case. Courts have achieved this goal by limiting those that have standing once a bankruptcy case is initiated. Thus, courts will appoint a trustee who alone has standing to handle the estate of the debtor.

Typically, the issue of standing will be straightforward when a creditor sues a debtor. However, the question becomes more complicated when a creditor sues another creditor, where their only connection is the debtor.

This memorandum focuses …

Domestic Support Obligation Not Necessarily A First Priority Claim, Gabrielle Pullo

Bankruptcy Research Library

(Excerpt)

During distribution of the proceeds of a debtor’s estate, creditor claims and expenses are paid in a specific order of priority pursuant to title 11 of the United States Code (the “Bankruptcy Code”). Domestic support obligations, which include monies owed to or recoverable by a spouse, former spouse, child of the debtor, or such child’s parents, are entitled to be paid first. Typically, these types of claims are first priority regardless of whether they are filed by the persons to whom they are owed or by a governmental unit on behalf of such persons. However, this top tier priority …