Law Commons^™

Divide, "Two-Step," And Conquer: How Johnson & Johnson Spurred The Bankruptcy System, Patrick Maney

University of Cincinnati Law Review

No abstract provided.

A Historical Account Of The Orderly Payment Of Debts Act Reference: Limiting Provincial Efforts To Protect Insolvent Debtors, Thomas Gw Telfer, Virginia Torrie

Dalhousie Law Journal

This paper analyzes the history of the Alberta Orderly Payment of Debts Act and the constitutional controversy that followed. The legislation sought to protect debtors by imposing restrictions on creditors. In 1960, the Supreme Court of Canada in Reference re Validity of Orderly Payment of Debts Act, 1959 (Alberta) ruled that the legislation was ultra vires on the basis that it interfered with the federal bankruptcy and insolvency power. The Orderly Payment of Debts Act reference is the capstone in a trilogy of cases in which provincial legislation was invalidated for encroaching upon the federal bankruptcy and insolvency power. The …

Modular Bankruptcy: Toward A Consumer Scheme Of Arrangement, John A. E. Pottow

Law & Economics Working Papers

The world of international bankruptcy has seen increasing use of the versatile scheme of arrangement, a form of corporate reorganization available under English law. A key feature of the scheme is its modularity, whereby a debtor can restructure only a single class of debt, such as bond indentures, without affecting other debt, such as trade. This is the opposite of chapter 11 of the U.S. Bankruptcy Code’s comprehensive reckoning of all financial stakeholders. This article considers a novel idea: could the scheme be transplanted into the consumer realm? It argues that it could and should. Substantial benefits of more individually …

Sb 148 - Amendments To The Nonprofit Code, Joseph Shafritz, Jonathan Shaw

Georgia State University Law Review

The Act revises, simplifies, and modernizes the Georgia Nonprofit Corporation Code, providing greater flexibility in forming and running such organizations.

Building A Restructuring Hub: Lessons From Singapore, Aurelio Gurrea-Martinez

Research Collection Yong Pung How School Of Law

This article analyses the legal, market and institutional features needed to become an international hub for debt restructuring. For that purpose, it explores the strategy followed by Singapore, as well as the market and institutional factors generally found in other leading centres for legal and financial services such as the United States, the United Kingdom and Hong Kong. In jurisdictions traditionally having creditor-oriented insolvency systems, such as the United Kingdom, Hong Kong and Singapore, one of the primary challenges for the improvement of the restructuring framework for debtors consists of making sure that the insolvency system remains protective of the …

The Future Of Insolvency Law In A Post-Pandemic World, Aurelio Gurrea-Martinez

Research Collection Yong Pung How School Of Law

The COVID-19 crisis has encouraged many countries to amend their insolvency laws. In most cases, these amendments took place temporarily – especially during the hibernation phase of the pandemic. In other countries, however, the pandemic has led to permanent changes in the insolvency legislation. More importantly, the COVID-19 crisis has accelerated the insolvency reforms already existing in the political agenda of many countries, and it has encouraged other jurisdictions to reassess the desirability of their insolvency and restructuring frameworks. This article analyzes the current trends, reforms and policy discussions that are expected to reshape the future of insolvency law in …

Law School News: Distinguished Research Professor: John Chung 05-24-2020, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Tuition As A Fraudulent Transfer, David G. Carlson

Articles

Bankruptcy trustees are suing universities because the insolvent parent of an adult student has written a tuition check while insolvent. The theory is that the university is the initial transferee of a fraudulent transfer that has provided benefit to the student but not to the parent debtor. This article claims that the university is never the initial transferee of tuition dollars. Rather, the student is. Where the university has no knowledge of parent insolvency, the university can count educating the student as a good faith transfer for value, thus immunizing the university from liability. The unpleasant side effect is that …

Grab The Fire Extinguisher Comparing Uk Schemes Of Arrangement To U.S. Corporate Bankruptcy After Jevic, David S. Stevenson

Cleveland State Law Review

Corporations overwhelmed with debt frequently turn to the courts for help to restructure their credit obligations, but some courts are more helpful than others. This is especially true when creditors cannot agree on a particular resolution, let alone when some creditors will not be paid at all. International corporations often have a choice of forum—and substantive insolvency law—based on their legal and physical presence in dozens or even hundreds of countries. The UK and U.S. offer different avenues for using insolvency law to restructure debts without total liquidation, and the American avenue has become more difficult to navigate thanks to …

Venezuela Undermines Gold Miner Crystallex's Attempts To Recover On Its Icsid Award, Sam Wesson

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

The Crisis In Corporate Governance: 2002 Style, Robert W. Hamilton

Maine Law Review

The period from November 1, 2001 to October 1, 2002 has been an astonishing period for corporate governance in many respects. It began with the completely unexpected collapse of Enron Corporation on November 1, 2001, followed almost immediately thereafter by widely publicized downward profit restatements and bankruptcy filings by a significant number of telecommunication companies. Since November 1, 2001, there have been numerous public reports of fraud, misconduct, and scandals by directors of other well-known corporations such as Lucent Technologies, Kmart, Merck & Co., and Rite Aid Corporation. There also have been disclosures of many instances in which corporate officers …

How Many #Followers Do You Have?: Evaluating The Rise Of Social Media And Issues Concerning In Re Ctli’S Determination That Social Media Accounts Are Property Of The Estate, Patricia A. Leeson

Catholic University Law Review

With the rise of social media use, legal disputes have surfaced with litigants looking to the courts to determine issues of ownership and legal authority. As a matter of first impression, a U.S. Bankruptcy Court in Texas held that a Twitter and Facebook social media account were to be regarded as property of the estate pursuant to Section 541 of the Bankruptcy Code. The court analogized the social media accounts to subscriber lists because they provide valuable access to customers. Although the court addressed the question of whether social media applications are to be regarded as property in bankruptcy proceedings, …

Treating The New European Disease Of Consumer Debt In A Post-Communist State: The Groundbreaking New Russian Personal Insolvency Law, Jason J. Kilborn

Jason Kilborn

This article examines the tumultuous transition from restrictive Communism to the debt-fueled consumer economy of modern Russia. In particular, it surveys Russia’s legal response to severe debt distress, situating it in the context of nearly one thousand years of historical development. Effective 1 October 2015, Russia finally joined most of its European neighbors in adopting a personal bankruptcy law, with characteristics that reflect both evolving international best practices and a series of lessons not learned. This article offers the first detailed exposition in English of the two steps forward represented by this new law, as well as an evaluation of …

Treating The New European Disease Of Consumer Debt In A Post-Communist State: The Groundbreaking New Russian Personal Insolvency Law, Jason J. Kilborn

Brooklyn Journal of International Law

This article examines the tumultuous transition from restrictive Communism to the debt-fueled consumer economy of modern Russia. In particular, it surveys Russia’s legal response to severe debt distress, situating it in the context of nearly one thousand years of historical development. Effective 1 October 2015, Russia finally joined most of its European neighbors in adopting a personal bankruptcy law, with characteristics that reflect both evolving international best practices and a series of lessons not learned. This article offers the first detailed exposition in English of the two steps forward represented by this new law, as well as an evaluation of …

Sales Or Plans: A Comparative Account Of The "New" Corporate Reorganization, Stephanie Ben-Ishai, Stephen J. Lubben

Stephanie Ben-Ishai

In this article, Professors Stephanie Ben-Ishai and Stephen Lubben explore the recent surge in popularity of “quick-sales,” essentially the pre-reorganization plan sale of an insolvent debtor’s assets. In their examination of quick sales, the authors use the recent examples of Lehman Brothers and Chrysler to illustrate the popularity and relevance of the pre-plan sales. The authors then move on to a more detailed discussion of the quick sales process in both Canada and the United States, isolating the differences and similarities between both countries, and weighing the costs and benefits of each approach. Ultimately, the authors argue that questions of …

Section 542(C) Of The Bankruptcy Reform Act Of 1978 And Section 4-303 Of The Ucc: A Less Than Perfect Fit?, John P. Finan

Akron Law Review

The Uniform Commercial Code (UCC) 4-303 addresses two areas where the UCC and the Bankruptcy Code intersect. The first relates to the vulnerability of drawee banks that honor checks after their customer has taken bankruptcy (has filed a voluntary petition or is the defendant in an involuntary case); the second relates to the timing of transfers made by check under 547 of the Bankruptcy Code (the preference section). In both areas there is a less than perfect fit between the Bankruptcy Code and UCC 4-303. The first area poses problems for practitioners whose clients have received notice of bankruptcy in …

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 …

Are Government Creditors Exempt From U.C.C. Article 9 Filing And Perfection Requirements?, Thomas Sica

Bankruptcy Research Library

(Excerpt)

Article 9 of the Uniform Commercial Code (the “UCC”) requires a creditor to perfect its security interests against its collateral in order to recover the creditor’s priority in such collateral. Former versions of the UCC that predate 2001 provided that the Article 9’s perfection requirements did not apply “[t]o a transfer by a government or a governmental unit of the state.” This exception was eliminated from the UCC in 2001. Thirty-two states, however, still have versions of the UCC that contain some version of this exception. Within the states that still enforce this exception for governmental units, there are …

When Does Some Federal Interest Require A Different Result?: An Essay On The Use And Misuse Of Butner V. United States, Juliet Moringiello

Juliet M Moringiello

Thousands of judges and scholars have relied on the statement in the 1979 Supreme Court opinion in Butner v. United States that “property interests are created and defined by state law...unless some federal interest requires a different result.” Often, they cite to the statement as a policy constraint that elevates state property law over federal bankruptcy law. This Essay, written for the American Bankruptcy Institute – University of Illinois Symposium on Chapter 11 Reform, posits that the Butner rule is not as broadly applicable as commonly believed. To do so, the Essay surveys some notable uses and misuses of the …

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 …

Debt-Buyer Lawsuits And Inaccurate Data, Peter A. Holland

Faculty Scholarship

Pursuant to secret purchase and sale agreements (also known as forward flow agreements), the accounts that banks sell to debt buyers are often sold “as is,” with explicit and emphatic disclaimers that the debts may not be owed, the amounts claimed may not be accurate, and documentation may be missing. Despite their full knowledge that the accuracy and completeness of the data has been specifically disclaimed by the bank, when they sue consumers, debt buyers tell courts that the information obtained from the bank is inherently reliable and accurate. In order to avoid a fraud on the courts, the contents …

Debt-Buyer Lawsuits And Inaccurate Data, Peter A. Holland

Peter A. Holland

Pursuant to secret purchase and sale agreements (also known as forward flow agreements), the accounts that banks sell to debt buyers are often sold “as is,” with explicit and emphatic disclaimers that the debts may not be owed, the amounts claimed may not be accurate, and documentation may be missing. Despite their full knowledge that the accuracy and completeness of the data has been specifically disclaimed by the bank, when they sue consumers, debt buyers tell courts that the information obtained from the bank is inherently reliable and accurate. In order to avoid a fraud on the courts, the contents …

When Does Some Federal Interest Require A Different Result?: An Essay On The Use And Misuse Of Butner V. United States, Juliet Moringiello

Juliet M Moringiello

Thousands of judges and scholars have relied on the statement in the 1979 Supreme Court opinion in Butner v. United States that “property interests are created and defined by state law . . . unless some federal interest requires a different result.” Often, they cite to the statement as a policy constraint that elevates state property law over federal bankruptcy law. This Essay, written for the American Bankruptcy Institute – University of Illinois Symposium on Chapter 11 Reform, posits that the Butner rule is not as broadly applicable as commonly believed. To do so, the Essay surveys some notable uses …

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 …

Relative Responsibility In Afdc: Problems Raised By The Noleo Approach—“If At First You Don't Succeed . . .”, Margaret Howard

Margaret Howard

No abstract provided.

The Treatment Of Consignments In Bankruptcy: Two Codes And Their Fictions, At Play, In The Fields, Ingrid Michelsen Hillinger

Ingrid Michelsen Hillinger

No abstract provided.

The Latest Developments In Article 9, Ingrid Michelsen Hillinger, Mark Leipold, Margit Livingston

Ingrid Michelsen Hillinger

No abstract provided.

The Story Of Ymps ("Yield Maintenance Premiums") In Bankruptcy, Ingrid Michelsen Hillinger, Michael G. Hillinger

Ingrid Michelsen Hillinger

No abstract provided.

Section 365 In The Consumer Context: Something Old, Something New, Something Borrowed, Something Blue, Ingrid Michelsen Hillinger, Michael G. Hillinger

Ingrid Michelsen Hillinger

No abstract provided.

The Immediate And Lasting Impacts Of The 2008 Economic Collapse--Lehman Brothers, General Motors, And The Secured Credit Markets, Edward J. Estrada

University of Richmond Law Review

This article analyzes the early days of the credit crisis as well as two of the largest casualties of that period-Lehman Brothers and General Motors. In addition, by focusing on the bankruptcy proceedings of these two entities as well as other judicial decisions rendered since the financial crisis began, it examines the role that courts have played in the crisis.