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Articles 31 - 60 of 89

Full-Text Articles in Bankruptcy Law

Please Recognize Me: The United Kingdom Should Enact The Uncitral Model Lawon Recognition And Enforcement Of Insolvency-Related Judgments, John A. Churchill Jr. Dec 2020

Please Recognize Me: The United Kingdom Should Enact The Uncitral Model Lawon Recognition And Enforcement Of Insolvency-Related Judgments, John A. Churchill Jr.

Brooklyn Journal of International Law

Since 1995, the United Nations Commission on International Trade Law (UNCITRAL), has been developing tools to meet the challenges of having different insolvency laws managing a single cross-border insolvency. By 1997, UNCITRAL’s Working Group V completed the Model Law on Cross-Border Insolvency. By September 2020, the original model law has been adopted by 48 countries. In Rubin v. Eurofinance SA, the U.K. Supreme Court cited a lack of authority to recognize a U.S. insolvency-related judgment in the Model Law on Cross-Border Insolvency. As a result of this decision, UNCITRAL’s Working Group V developed the Model Law on Recognition and Enforcement …

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Door Shut And Ears Plugged: How Consumer Reporting Casts Identity Theft Victims Out Of Financial Society And How The Law Can Be Harmonized To Bring Them Back In, Ryan Bolger Dec 2020

Door Shut And Ears Plugged: How Consumer Reporting Casts Identity Theft Victims Out Of Financial Society And How The Law Can Be Harmonized To Bring Them Back In, Ryan Bolger

Brooklyn Journal of Corporate, Financial & Commercial Law

Consumer Reporting Agencies (CRAs) are the gatekeepers to the American economy. As the chief informants for prospective lenders, landlords, and employers, they exert immense power over the day-to-day decisions of who gets what. Despite these high stakes, the CRAs run consumer reporting as an automated electronic process that causes a lot of reporting errors, disqualifying consumers from essential goods, services, and opportunities. This is painfully true in the context of identity theft, where perverse incentives pollute the integrity of consumer reporting, piling undue harm onto identity theft victims. The law provides a remedy for this problem, but circuit courts are …

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Consumers' Declining Power In The Fintech Auto Loan Market, Pamela Foohey Dec 2020

Consumers' Declining Power In The Fintech Auto Loan Market, Pamela Foohey

Brooklyn Journal of Corporate, Financial & Commercial Law

Automobiles have become part of America’s infrastructure. For most people, having access to a car is crucial to their livelihoods and they will take on significant amounts of debt to purchase vehicles. Auto debt is unlike any other consumer debt, both in its structure, which allows creditors to easily seize collateral, and in its lack of regulation. The unique and lucrative nature of auto debt has not gone unnoticed by lenders or by companies leveraging fintech to offer people new ways to purchase cars and car loans. This Article assesses the evolving marketplace for auto sales, leasing, and loans to …

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Symposium: Consumer Welfare Market Structure And Political Power, Edward J. Janger Dec 2020

Symposium: Consumer Welfare Market Structure And Political Power, Edward J. Janger

Brooklyn Journal of Corporate, Financial & Commercial Law

Two competing visions dominate the fields of antitrust and consumer protection: neo-liberal and progressive. The neo-classical approach is associated with Robert Bork and the Law and Economics Movement. The progressive strand is older, identified with Brandeis and early 20th Century social reform. As a matter of chronology the Brandeisian view dominated into the 1970s, but from 1980, until recently, the Borkian law and economics approach has been in ascendancy in Congress, the academy, and in the courts. Technological change and events in the broader economy have caused the politics and the academic focus to shift. The financial crisis of 2008-09 …

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The U.S. Small Business Bankruptcy Amendments: A Global Model For Reform?, Edward J. Janger Jul 2020

The U.S. Small Business Bankruptcy Amendments: A Global Model For Reform?, Edward J. Janger

Faculty Scholarship

No abstract provided.

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Revising The Debt Limit For “Small Business Debtors”: The Legislative Half-Measure Of The Small Business Reorganization Act, Michael C. Blackmon Jun 2020

Revising The Debt Limit For “Small Business Debtors”: The Legislative Half-Measure Of The Small Business Reorganization Act, Michael C. Blackmon

Brooklyn Journal of Corporate, Financial & Commercial Law

Bankruptcy law changed drastically in 2019 with the passage of several bills. This Note will examine two of them. First, the Family Farmer Relief Act of 2019 raised the debt limit of the family farmer from $4,411,400 to $10,000,000. This enables more financially distressed family farmers to be eligible for Chapter 12 relief, a reorganizational tool designed for farmers. Second, the Small Business Reorganization Act of 2019 created Subchapter V – Small Business Debtor Reorganization in Chapter 11. This new Subchapter streamlined the reorganization process for small business debtors by removing roadblocks which often derail a reorganization of a small …

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Value Tracing And Priority In Cross-Border Group Bankruptcies: Solving The Nortel Problem From The Bottom Up, Edward Janger, Stephan Madaus Apr 2020

Value Tracing And Priority In Cross-Border Group Bankruptcies: Solving The Nortel Problem From The Bottom Up, Edward Janger, Stephan Madaus

Faculty Scholarship

No abstract provided.

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The Proceduralist Inversion–A Response To Skeel, Edward Janger, Adam J. Levitin Jan 2020

The Proceduralist Inversion–A Response To Skeel, Edward Janger, Adam J. Levitin

Faculty Scholarship

No abstract provided.

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“Fair Enough”? Revising The Yellowstone Injunction To Fit New York’S Commercial Leasing Landscape And Promote Judicial Economy, Gabriel W. Block Dec 2019

“Fair Enough”? Revising The Yellowstone Injunction To Fit New York’S Commercial Leasing Landscape And Promote Judicial Economy, Gabriel W. Block

Brooklyn Journal of Corporate, Financial & Commercial Law

The Yellowstone injunction is an equitable remedy that tolls any applicable cure period and gives tenants a better opportunity to maintain their leasehold when they have defaulted under their lease. The remedy is available to commercial tenants in New York City and to commercial and residential tenants throughout the State. This Note examines the Yellowstone injunction in the context of New York City’s commercial tenants, who employ it most frequently and benefit most from its protections. This Note examines the development and application of the Yellowstone injunction and proposes changing the doctrine to exclude cases of monetary defaults and expired …

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Between Scylla And Charybdis: Maritime Liens And The Bankruptcy Code, Ian T. Kitts Dec 2019

Between Scylla And Charybdis: Maritime Liens And The Bankruptcy Code, Ian T. Kitts

Brooklyn Journal of Corporate, Financial & Commercial Law

Federal courts have had trouble fitting maritime law into the bankruptcy scheme created by the Bankruptcy Code (the Code). Particularly troublesome have been vessel-arrest proceedings that are underway when the vessel’s owner files for bankruptcy. Prior to the enactment of the Code, courts applied the doctrine of custodia legis to decide whether the admiralty or the bankruptcy court would administer the vessel. Since the Code was enacted, courts have generally held that the bankruptcy court gained control. A recent Ninth Circuit decision, however, split with other circuits and seems to have revived custodia legis. This Note argues that the Ninth …

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One Dollar, One Vote: Mark-To-Market Governance In Bankruptcy, Edward J. Janger, Adam J. Levitan May 2019

One Dollar, One Vote: Mark-To-Market Governance In Bankruptcy, Edward J. Janger, Adam J. Levitan

Faculty Scholarship

No abstract provided.

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The Creditors' Bargain Reconstituted: Comments On Barry Adler's The Creditors' Bargain Revisited, Edward J. Janger Jan 2019

The Creditors' Bargain Reconstituted: Comments On Barry Adler's The Creditors' Bargain Revisited, Edward J. Janger

Faculty Scholarship

No abstract provided.

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Backstop, Not Bailout: The Case For Preserving The Orderly Liquidation Authority Under Dodd-Frank, Mark R. Maciuch Oct 2018

Backstop, Not Bailout: The Case For Preserving The Orderly Liquidation Authority Under Dodd-Frank, Mark R. Maciuch

Brooklyn Journal of Corporate, Financial & Commercial Law

The Trump Administration and Republicans have initiated efforts to repeal certain provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank), one of which is the Orderly Liquidation Authority (OLA) under Title II of Dodd-Frank. Critics of the OLA argue that it enables, rather than prevents, future bailouts funded by taxpayers. These critics are concerned with the Federal Deposit Insurance Corporation’s (FDIC) discretion to decide when and how to resolve distressed financial firms, as well as the FDIC’s access to large amounts of funds from the U.S. Department of the Treasury to carry out these functions. Proponents of …

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The Market For Corporate Control In The Zone Of Insolvency: Symposium Introduction, Edward J. Janger Oct 2018

The Market For Corporate Control In The Zone Of Insolvency: Symposium Introduction, Edward J. Janger

Brooklyn Journal of Corporate, Financial & Commercial Law

No abstract provided.

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Corporate Distress, Credit Default Swaps, And Defaults: Information And Traditional, Contingent, And Empty Creditors, Henry T. C. Hu Oct 2018

Corporate Distress, Credit Default Swaps, And Defaults: Information And Traditional, Contingent, And Empty Creditors, Henry T. C. Hu

Brooklyn Journal of Corporate, Financial & Commercial Law

Federal securities law seeks to ensure the quality and quantity of information that corporations make publicly available. Informational asymmetries associated with companies in financial distress, but not in bankruptcy, have received little attention. This Article explores some important asymmetries in this context that are curious in their origin, nature, and impact. The asymmetries are especially curious because of the impact of a world with credit default swaps (CDS) and CDS-driven debt “decoupling.” The Article explores two categories of asymmetries. The first relates to information on the company itself. Here, the Article suggests there is fresh evidence for the belief that …

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Bankruptcy Fiduciary Duties In The World Of Claims Trading, John A. E. Pottow Oct 2018

Bankruptcy Fiduciary Duties In The World Of Claims Trading, John A. E. Pottow

Brooklyn Journal of Corporate, Financial & Commercial Law

In earlier work, I explored the role of fiduciary duties in the bankruptcy trustee’s administration of a debtor’s estate, noting the absence of any explicit demarcation of those duties in the Bankruptcy Code. In this piece, I report the highlights of that analysis and see to what extent (if any) fiduciary duties can inform policy prescriptions for the issue of bankruptcy claims trading, colorfully referred to by some as the world of “bankruptcy M&A.” My initial take is pessimistic. Fiduciary duties, at least as traditionally conceived in bankruptcy, are unlikely to provide much help. But there is still a source …

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Transparency In Corporate Groups, Jay Lawrence Westbrook Oct 2018

Transparency In Corporate Groups, Jay Lawrence Westbrook

Brooklyn Journal of Corporate, Financial & Commercial Law

This Article addresses a remarkable blind spot in American law: the failure to apply the well-established principles of secured credit to prevent inefficiency, confusion, and fraud in the manipulation of the webs of subsidiaries within corporate groups. In particular, “asset partitioning” has been a fashionable subject in which the central problem of non-transparency has been often mentioned but little addressed. This Article offers a concept for a new system of corporate disclosure for the benefit of creditors and other stakeholders. It would require disclosure of corporate structures and allocations of assets among affiliates to the extent the affiliates are to …

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Badges Of Opportunism: Principles For Policing Restructuring Support Agreements, Edward J. Janger, Adam J. Levitin Oct 2018

Badges Of Opportunism: Principles For Policing Restructuring Support Agreements, Edward J. Janger, Adam J. Levitin

Brooklyn Journal of Corporate, Financial & Commercial Law

Bankruptcy is a market for corporate control. Current bankruptcy practice offers two alternative mechanisms for effectuating changes in control of a firm: (1) a pre-plan all-asset sale under section 363(b) of the Bankruptcy Code; or (2) an asset sale or recapitalization pursuant to a plan of reorganization under section 1129 of the Code. Pre-plan sales under section 363(b) are fast, but lack the procedural protections associated with a restructuring or sale pursuant to a plan. Plan confirmation can be costly and uncertain, however. Restructuring support agreements (“RSAs”)—contractual agreements to support a future restructuring that has certain agreed-upon characteristics—appear to offer …

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Insider Trading: Are Insolvent Firms Different?, Andrew Verstein Oct 2018

Insider Trading: Are Insolvent Firms Different?, Andrew Verstein

Brooklyn Journal of Corporate, Financial & Commercial Law

Federal law restricts insider trading. Yet these restrictions operate differently on insolvent or bankrupt firms. The law is more constraining in some respects: federal law extensively regulates the trading of residual claims in solvent firms but not insolvent firms. However, the law is more constraining in other respects: insider trading law does little to limit debt-trading at solvent firms, but a bankruptcy enmeshes all creditors in a web of insider trading rules. This Article identifies insolvency’s economic and legal influence on insider trading law and then normatively evaluates this transformation.

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Corporate Governance And Bankruptcy, Daniel J.H. Greenwood Oct 2018

Corporate Governance And Bankruptcy, Daniel J.H. Greenwood

Brooklyn Journal of Corporate, Financial & Commercial Law

Ordinary corporate law invests enormous authority in corporate leaders, largely without accountability either to those they govern or to the judiciary, in defiance of much of what we know about effective governance procedure. Instead, we rely on the markets in which the corporation participates as the primary check on incumbent officials. Regardless of whether relying on markets is sufficient in the ordinary course, corporate insolvency is the markets’ verdict that incumbent management has failed. Accordingly, in bankruptcy and insolvency more generally, the law ought to abandon its ordinary deference to the corporate powers that be and instead impose standard good …

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Private Benefits Without Control? Modern Chapter 11 And The Market For Corporate Control, Oscar Couwenberg, Stephen J. Lubben Oct 2018

Private Benefits Without Control? Modern Chapter 11 And The Market For Corporate Control, Oscar Couwenberg, Stephen J. Lubben

Brooklyn Journal of Corporate, Financial & Commercial Law

Outside of bankruptcy, a board of directors’ decision to take control rights away from existing shareholders and grant them to another is subject to heightened fiduciary duties. As the sale of control represents a kind of end game, shareholders have one last chance to realize the full value for their investment. In such a context, their interests warrant special protection. A similar sale of control can happen in a chapter 11 procedure when a bankruptcy plan revamps the capital structure of the firm. In such a restructuring of the firm, control rights can be newly created, redefined and redistributed to …

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The Devious Debtor: 11 U.S.C. § 523(A)(2)(B) And The Need For A More Equitable Outcome, Torie Levine Oct 2018

The Devious Debtor: 11 U.S.C. § 523(A)(2)(B) And The Need For A More Equitable Outcome, Torie Levine

Brooklyn Journal of Corporate, Financial & Commercial Law

Section 523(a)(2)(A) of the Bankruptcy Code prohibits debtors from discharging debts for money, property, services, or credit obtained by false pretenses, a false representation, or actual fraud other than a statement respecting the debtor’s financial condition. Under § 523(a)(2)(B), if those debts are obtained by a statement respecting the debtor’s financial condition, then the statement must be in writing for the debt to be discharged. A conflict among the circuit courts arose as to whether a statement about a single asset can be a statement respecting the debtor’s financial condition. The majority of the courts applied a narrow interpretation to …

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The Husky Case: Fraud, Bankruptcy, And Veil Piercing, Harvey Gelb Jun 2018

The Husky Case: Fraud, Bankruptcy, And Veil Piercing, Harvey Gelb

Brooklyn Journal of Corporate, Financial & Commercial Law

A recent Supreme Court decision, Husky International Electronics, Inc. v. Ritz, explores the meaning of the word “fraud” under a federal bankruptcy statutory section. That section uses the term “actual fraud,” and bears upon the question of whether a particular debt should be denied a discharge. The Court’s approach in defining fraud affords guidance to the question of defining fraud under other statutes. The Husky case also raised a veil piercing issue to be dealt with on remand. That issue involved the application of Texas statutory law precluding veil piercing in cases brought by contract creditors unless they were victims …

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Tracing Equity: Realizing And Allocating Value In Chapter 11, Edward J. Janger, Melissa B. Jacoby Mar 2018

Tracing Equity: Realizing And Allocating Value In Chapter 11, Edward J. Janger, Melissa B. Jacoby

Faculty Scholarship

No abstract provided.

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Sovereign Debt Restructuring And English Governing Law, Steven L. Schwarcz Dec 2017

Sovereign Debt Restructuring And English Governing Law, Steven L. Schwarcz

Brooklyn Journal of Corporate, Financial & Commercial Law

The problem of sovereign indebtedness is becoming a worldwide crisis because nations, unlike individuals and corporations, lack access to bankruptcy laws to restructure unsustainable debt. Decades of international efforts to solve this problem through contracting and attempted treaty-making have failed to provide an adequate debt-restructuring framework. A significant amount of outstanding sovereign debt is governed, however, by English law. This Article argues that the U.K. Parliament has the extraordinary power to help solve the problem of unsustainable country debt by changing English law to facilitate fair and consensual debt restructuring. This Article also proposes modifications to English law that Parliament …

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Promesa And The Bankruptcy Clause: A Reminder About Uniformity, Stephen J. Lubben Dec 2017

Promesa And The Bankruptcy Clause: A Reminder About Uniformity, Stephen J. Lubben

Brooklyn Journal of Corporate, Financial & Commercial Law

The Bankruptcy Clause—Article I, Section 8, Clause 4—provides that “The Congress shall have power . . . [t]o establish . . . uniform Laws on the subject of Bankruptcies throughout the United States . . . .”[1] But Congress has just enacted a bankruptcy law that applies to a single American territory. In early May 2017, Puerto Rico and one affiliated entity filed a petition under this new law. In late May, the Employees Retirement System commenced a case, along with the Puerto Rico Highway and Transportation Authority. Other Puerto Rican sub-entities are expected to follow. I use this short …

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Decision-Making And The Shaky Property Foundations Of Municipal Bankruptcy Law, Juliet M. Moringiello Dec 2017

Decision-Making And The Shaky Property Foundations Of Municipal Bankruptcy Law, Juliet M. Moringiello

Brooklyn Journal of Corporate, Financial & Commercial Law

Municipal bankruptcies are unpredictable. There are several reasons for this statement— municipal bankruptcies are rare, involvement of the state itself in the process varies according to the governing state law, and chapter 9, the Bankruptcy Code chapter governing the municipal bankruptcy process, has many gaps. Congress constructed the modern chapter 9 on a foundation of corporate bankruptcy law, a foundation whose roots—corporate finance—are significantly different from the rules governing municipal finance. In this Article, Professor Moringiello aims a spotlight on the property roots of private bankruptcy law and compares them to the promissory and statutory roots of municipal finance law …

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Towards A Jurisprudence Of Public Law Bankruptcy Judging, Edward J. Janger Dec 2017

Towards A Jurisprudence Of Public Law Bankruptcy Judging, Edward J. Janger

Brooklyn Journal of Corporate, Financial & Commercial Law

In this essay Professor Janger considers the role of bankruptcy judges in Chapter 9 cases in light of the scholarly literature on public law judging. He explores the extent to which bankruptcy judges engaged in the fiscal restructuring of a municipality use tools, and face constraints, similar to those utilized by federal district court judges in structural reform cases, where constitutional norms are at issue.

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Golden Creditors, Copper Rules: An Analysis Of Avoidance Actions Under Section 544(B) Of The Bankruptcy Code In Cases Where A Federal Creditor Holds A Claim, John F. Rabe Jr. Jan 2017

Golden Creditors, Copper Rules: An Analysis Of Avoidance Actions Under Section 544(B) Of The Bankruptcy Code In Cases Where A Federal Creditor Holds A Claim, John F. Rabe Jr.

Brooklyn Law Review

Section 544(b) of the Bankruptcy Code endows the trustee with the power to avoid fraudulent transfers that an unsecured creditor could have avoided under applicable law. Most states have adopted versions of the Uniform Fraudulent Conveyances Act (UFCA) or Uniform Fraudulent Transfers Act (UFTA) that impose four- or six-year statutes of limitations on private creditors seeking to unwind fraudulent transfers. Certain government creditors, however, have access to longer statutes of limitation than those available to their private counterparts. Federal creditors acting pursuant to the Federal Debt Collection Procedures Act (FDCPA) or Internal Revenue Code (IRC), for example, can avail themselves …

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Understanding Wellness International Network, Ltd. V. Sharif: The Problems With Allowing Parties To Impliedly Consent To Bankruptcy Court Adjudication Of Stern Claims, Elizabeth Jackson Dec 2016

Understanding Wellness International Network, Ltd. V. Sharif: The Problems With Allowing Parties To Impliedly Consent To Bankruptcy Court Adjudication Of Stern Claims, Elizabeth Jackson

Brooklyn Journal of Corporate, Financial & Commercial Law

The 2011 Supreme Court case Stern v. Marshall defined which claims bankruptcy courts had the authority to adjudicate, but it’s complicated holding left lower courts perplexed. Specifically, the Stern decision created “Stern claims”—claims that bankruptcy courts have the statutory, but not the constitutional, authority to adjudicate. Subsequent cases, such as Executive Benefits Insurance Agency v. Arkison and Wellness International Network, Ltd. v. Sharif, have grappled with whether Stern claims should be treated as “core” claims, which bankruptcy courts can enter final judgments on, or “non-core” claims, which bankruptcy courts can only enter final judgments on if the litigating parties consent. …

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