Law Commons^™

Chapter 11 Case Management And Delay Reduction: An Empirical Study, Samuel Bufford

Hon. Samuel L. Bufford

Chapter 11 bankruptcy cases will drag on interminably if judges let them. The recent nine-month O.J. Simpson trial was short compared to the careers of some chapter 11 bankruptcy cases. The typical duration of chapter 11 cases can be reduced remarkably, however, through moderate judicial case management. The data in this study show that relatively modest judicial case management can squeeze a substantial amount of delay out of chapter 11 cases within the context of the present bankruptcy law. The case management program in this study, applied to 81.2% of the chapter 11 case load, shortened by 24.1% the time …

A Proposal For Chapter 10: Reorganization For 'Too Big To Fail' Companies, George Kuney, Michael James

Michael C James

The Bankruptcy Code provides tools that are well-suited to addressing and resolving the financial problems faced by the "Big Three" automakers and other "too big to fail" companies ("TBTF Companies"). But Chapter 11 as it presently exists would inevitably impose great harm on vendors and other interrelated businesses resulting in a ripple effect causing cascading business failures and lay-offs. With comparatively minor changes to the Bankruptcy Code, enacted in the form of a streamlined new Chapter 10, however, TBTF Companies could use the powerful tools of the bankruptcy process to remedy their core financial problems without imposing on society unnecessary …

Why Do Distressed Companies Choose Delaware? An Empirical Analysis Of Venue Choice In Bankruptcy , Kenneth M. Ayotte, David A. Skeel Jr.

Kenneth Ayotte

We analyze a sample of large Chapter 11 cases to determine which factors motivate the choice of filing in one court over another when a choice is available. We focus in particular on the Delaware court, which became the most popular venue for large corporations in the 1990s. We find no evidence of agency problems governing the venue choice or affecting the outcome of the bankruptcy process. Instead, firm characteristics and court characteristics, particularly a court's level of experience, are the most important factors. We find that court experience manifests itself in both a greater ability to reorganize marginal firms …

Crowdsourcing (Bankruptcy) Fee Control, Matthew Bruckner

Matthew Adam Bruckner

In this article, I explore how crowdsourcing can help reduce the cost of professional representation in corporate bankruptcy cases. The cost of professional representation in bankruptcy cases is currently a hot topic, with oral argument haven taken place before the U.S. Supreme Court in Baker Botts L.L.P. v. Asarco, L.L.C. in February 2015, which case addressed various issues raised in my article. In brief, the fees of lawyers, investment bankers, and other bankruptcy professionals has been spiraling out of control because chapter 11’s existing fee control system is broken. That system can neither identify nor control professional overcharging, which empirical …

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 …

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.