Bankruptcy Law Commons^™

A Bankruptcy Resuscitation: Addressing Private Equity’S Role In Healthcare Insolvencies, Peyton K. Perry

Emory Bankruptcy Developments Journal

The healthcare sector, traditionally driven by a commitment to patient well-being and quality of care, has increasingly been influenced by financialization, particularly through private equity investments. This Comment explores the impact of private equity on healthcare companies, especially those facing bankruptcy by highlighting how private equity’s profit-driven motives often compromise patient care and lead to financial distress for healthcare providers and companies.

Specifically, this Comment examines the historical context of healthcare as a healing profession and the ethical implications of its financialization. It then delves into the mechanics of private equity as a business model and utilizes recent case studies …

Introduction: A Tribute To Jack Butler, Jackson A. Brown

Emory Bankruptcy Developments Journal

No abstract provided.

Priority Treatment Of Fraud Claims In Bankruptcy, John P. Hunt

Emory Bankruptcy Developments Journal

No abstract provided.

Bankruptcy’S Blind Spot: An Examination Of How The System Turns Its Back On Mentally Ill Debtors, Ashley Deady

Emory Bankruptcy Developments Journal

No abstract provided.

Fresh Start Or False Promise? Addressing Black Student Loan Debt Through Bankruptcy, Adji Ostin

Emory Bankruptcy Developments Journal

No abstract provided.

Exporting Bankruptcy: China’S Jurisdictional Gambit Under Chapter 15, Jason Jia-Xi Wu, Chentuo Zhu

Emory Bankruptcy Developments Journal

China’s distressed corporate giants are increasingly turning to U.S. bankruptcy courts. Instead of seeking discharge under China’s own bankruptcy system, a growing wave of Chinese megafirms—often state-backed and systemically important—are pursuing cross-border insolvency relief under chapter 15 of the U.S. Bankruptcy Code. This trend raises urgent questions: Why are China’s largest companies reaching across the Pacific to restructure? And how are their filings reshaping entrenched U.S. bankruptcy practices in ways that diverge from other foreign debtors?

At the heart of this phenomenon is a calculated, multi-jurisdictional forum shopping strategy. Chinese debtors typically begin by incorporating a shell …

Opening Remarks Disruptor, Innovator, Philanthropist: John William Butler, Jr. (A/K/A Jack Butler), Michelle Harner

Emory Bankruptcy Developments Journal

No abstract provided.

Super-Efficient Breach In Bankruptcy: Recalibrating Remedies For Contract Rejection Damages, Ishaq Kundawala

Emory Bankruptcy Developments Journal

Contract law rests on a simple but powerful premise: when a party breaches, the law protects the injured party’s expectation interest, placing them, as nearly as possible, in the position they would have occupied had the contract been performed. This principle underlies the theory of efficient breach, which tolerates economically rational breaches so long as the non-breaching party is fully compensated. But in bankruptcy, this foundation often collapses. Under section 365 of the Bankruptcy Code, a debtor may reject an executory contract, with the law treating that rejection as a prepetition breach and relegating the counterparty’s claim to general unsecured …

Insurance And Chapter 11 Bankruptcy: Is The Insurance Neutrality Doctrine Dead?, Mikaela Deleon

Emory Bankruptcy Developments Journal

Insurers have traditionally been denied “party in interest” status under the Bankruptcy Code due to the longstanding insurance neutrality doctrine. The insurance neutrality doctrine prevents insurers from challenging a chapter 11 bankruptcy plan as a section 1109(b) “party in interest” if the plan does not increase the insurance company’s liability from pre-bankruptcy levels. If none of their rights or obligations were impacted by the plan, insurance companies were previously left without a means to challenge a proposed reorganization plan. As a result, insurance companies providing liability insurance to corporations stricken with mass tort lawsuits ran the risk of becoming the …

Asbestos 2.0: A Looming Disaster At The Intersection Of Pfas Litigation And The Texas Two-Step––Even After Purdue Pharma, Tyler Sheridan

Emory Bankruptcy Developments Journal

Companies that have manufactured, processed, or sold per- and polyfluoroalkyl substances (“PFAS”), also known as “forever chemicals,” face mounting financial pressure as the number of claims against them skyrocket. With billions of dollars already allocated to settlements and new lawsuits continuously filed, liable corporations may utilize the Texas Two-Step to minimize financial risk. The maneuver would enable solvent companies to isolate PFAS liability and discard it into bankruptcy, potentially delaying and capping payouts for claimants in the process. Third-party releases have survived Purdue, leaving the forum’s ability to permanently resolve mass tort liability intact. Moreover, escalating litigation may prompt …

Desperation Finance: Merchant Cash Advances In Bankruptcy And Beyond, Kara Bruce

Emory Bankruptcy Developments Journal

Over the last several years, Merchant Cash Advances (“MCAs”) have risen in prominence as a form of short-term financing for distressed small businesses. MCA transactions are distinct from most small-business lending because they are not structured as loans at all. Rather, in exchange for a lump sum of cash, the merchant purports to sell to the funder an unidentified percentage of its future receipts or receivables. This structure allows funders to sidestep the application of lending regulations and usury protections, but it strains the foundations of commercial law and generates a host of interpretive challenges.

Bankruptcy, district, and circuit courts …

Gendered Outcomes In Student Loan Bankruptcy, Jason Iuliano

Emory Bankruptcy Developments Journal

Women are winning more student loan bankruptcy cases than men, a notable reversal that challenges what we know about gender and legal outcomes. Drawing on hand-coded data from over 1,300 adversary proceedings spanning 2007 to 2023, this Article documents a sharp post-2022 shift. Women now succeed in 89% of cases compared to 82% for men.

The puzzle is that financial metrics cannot explain this gap. Men and women who file these cases look indistinguishable on paper: similar debt loads, comparable assets, and equivalent incomes. Legal representation explains part of the story. Women are slightly more likely to hire attorneys, and …

Holding The Debtor’S Fresh Start Hostage: Bankruptcy Courts Incorrectly Interpret Ransom V. Fia Card Services To Deny Debtors A Car Ownership Expense Deduction, Creola Johnson

Emory Bankruptcy Developments Journal

With the passage of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Congress adopted for the first time a standardized income-based test for measuring an individual debtor’s “disposable income,” which is the amount a debtor must pay to unsecured creditors in a chapter 13 proceeding. Under the means test, debtors calculate their disposable income by deducting from income various standard expenses established by the Internal Revenue Service. One of those standard expenses is a vehicle ownership expense, which debtors can deduct if they have auto loan or lease payments. 

This Article is about bankruptcy courts who …

Acceptance Remarks For The 2026 Distinguished Service Award For Lifetime Achievement: Reflections On Journey, Learning And Paying It Forward, Jack Butler

Emory Bankruptcy Developments Journal

No abstract provided.

Rethinking Priority Rules In Insolvency, Anthony J. Casey, Aurelio Gurrea-Martinez

Emory Bankruptcy Developments Journal

No abstract provided.

No Harm, No Foul? The Recent Trend Of Super Speed Chapter 11 Bankruptcy, Isabella Leblanc

Emory Bankruptcy Developments Journal

Super speed chapter 11 bankruptcies have become a popular option for debtors seeking a quick restructuring process. Since In re Bluebird in 2006, courts have allowed debtors to complete a chapter 11 restructuring in record time, sometimes in less than a day. Such bankruptcies afford the debtor speed when the traditional chapter 11 timeline would effectively push the debtor into liquidation. In early super speed chapter 11 cases, the courts used the equity powers in section 105(a) of the Bankruptcy Code to analyze whether the circumstances warranted such speed. However, since 2016, courts have improperly asserted that the super speed …

Opening Remarks, Douglas J. Whaley

Emory Bankruptcy Developments Journal

No abstract provided.

Acceptance Remarks For The 2025 Distinguished Service Award For Lifetime Achievement, Jay Lawrence Westbrook

Emory Bankruptcy Developments Journal

No abstract provided.

The Nightmare Loophole: Circumventing Section 365(N) And Erasing A Non-Debtor Licensee’S Intellectual Property Rights, Grant Marshall

Emory Bankruptcy Developments Journal

In today’s knowledge-driven economy, the significance of intellectual property licenses cannot be overstated. Nevertheless, a loophole within the Bankruptcy Code allows a non-debtor’s license agreement to be erased, stripping them of their right to utilize the intellectual property without any avenue for recourse. Selling intellectual property “free and clear” of encumbrances before the debtor rejects the license agreement could deprive the non-debtor licensee of the opportunity to continue using the intellectual property. This loophole not only undermines the policy goals of both intellectual property and bankruptcy, but also subverts the clear intentions of Congress and the Supreme Court to protect …

Climate Adaptation And Bankruptcy: Preparing Utilities For What Is To Come, Hayley Roy

Emory Bankruptcy Developments Journal

Climate change is an existential crisis that has and will continue to impact every aspect of our daily lives. An overlooked component of life in the United States, except in times of crisis, is our energy grid, which will continuously feel the consequences of climate change. Electricity is a basic necessity for most people in the U.S., but it is underprepared for the realities of climate change. Climate adaptation is a necessary step forward that energy utilities must take to ensure the resilience and reliability of electricity. Failure to adequately adapt will lead to dangerous situations as seen in the …

Testing The Waters: Expanding Chapter 9 Bankruptcy To Encourage Treatment Of Chemically Contaminated Drinking Water, Alexandra Zimmer

Emory Bankruptcy Developments Journal

Chemical contamination of drinking water supplies has become a significant issue across the globe with serious health and safety impacts. While the true extent of the impact is still being determined, costs associated with remediation efforts to clean up are astonishing. Municipalities, in particular cities, towns, and counties, suffer significant damages both through costs incurred directly for treatment of chemically contaminated drinking water supplies and through lost revenues resulting from municipal residents’ exposure.

This Comment argues Congress should expand municipal access to filing for bankruptcy under chapter 9 of the Bankruptcy Code to encourage local government efforts to clean up …

A Commitment Rule For Insolvency Forum: A Response To Critics, Anthony J. Casey, Aurelio Gurrea-Martinez, Robert K. Rasmussen

Emory Bankruptcy Developments Journal

No abstract provided.

Party Commitment And Flexibility In Corporate Restructuring, Robert K. Rasmussen

Emory Bankruptcy Developments Journal

No abstract provided.

Chapter 11 Mediation, Laura N. Coordes

Emory Bankruptcy Developments Journal

Mediation has become an increasingly popular and powerful tool in chapter 11 reorganizations, especially in large cases. Despite its widespread and growing use, mediation in chapter 11 is under-studied. This Article begins to fill this gap in the literature by critically assessing mediation, a form of largely private dealmaking, in the context of a bankruptcy process that is supposed to be largely public. The Article begins by discussing mediation’s popularity within the bankruptcy process before turning to a review of issues that have arisen in recent cases, providing a critical assessment of mediation’s promise and perils. In particular, the Article …

The Walking Debt: How Zombie Pacs Threaten Federal Elections And Proposals For Reform, Ariel Bagley

Emory Bankruptcy Developments Journal

Zombie political action committees are political entities that are legally alive but whose candidate the committee is attached to has either died or functionally retired from politics. These committees form as a byproduct of skewed incentives in campaign finance law. The Federal Election Commission (“FEC”) is tasked with enforcing campaign finance laws and terminating political committees. However, it is structurally ineffective at enforcing those laws. Congress, meanwhile, has defunded the FEC and is poorly incentivized to improve its efficacy, as any Congressperson may one day benefit from having a zombie committee. When zombies do form, they are almost impossible to …

Defending "Second-Party" Releases In Mass Tort Bankruptcies, Brook E. Gotberg, Annette W. Jarvis

Emory Bankruptcy Developments Journal

The Bankruptcy Code enables corporate debtors to restructure their debts, including liability for tort damages. Recovery from an insolvent debtor poses daunting collective action problems for tort victims. By creating and funding a trust in bankruptcy, the liable company can streamline settlement and distribute available assets to give all claimants—including individuals who have been harmed by the company’s past activity but are not yet aware of the harm—an aliquot portion of available funds.

Frequently, tort damages levied against a bankrupt company implicate not only the debtor but other related parties, like the company’s insurers, directors and officers, corporate affiliates, and …

Full Discharge Ahead? An Empirical First Look At The New Student Loan Discharge Process In Bankruptcy, Belisa Pang, Dalié Jiménez, Matthew Adam Bruckner

Emory Bankruptcy Developments Journal

The legal framework for discharging student loan debt held by bankruptcy filers cases changed in November 2022 with the Biden Administration’s Department of Justice issuing its “Guidance for Department Attorneys Regarding Student Loan Bankruptcy Litigation,” fundamentally altering the legal framework for discharging student loan debt in bankruptcy cases. The Guidance aims to enhance consistency and equity by: (1) ensuring transparent and consistent expectations; (2) reducing the burden on debtors; and (3) making it easier for DOJ attorneys to recommend discharging a debtor’s student loans. The DOJ has touted the new Guidance as having “made a real difference in borrowers’ lives,” …

Introduction: A Tribute To Professor Jay L. Westbrook, Barbara Wilkie, Molly Wilson

Emory Bankruptcy Developments Journal

No abstract provided.

Revocation Of David R. Jones’S Lifetime Achievement Award

Emory Bankruptcy Developments Journal

No abstract provided.

Am I My Colleague’S Keeper When It Comes To Disclosing Connections?, Nancy B. Rapoport

Emory Bankruptcy Developments Journal

No abstract provided.