Bankruptcy Law Commons^™

Section 524(G) Without Compromise: Voting Rights And The Asbestos Bankruptcy Paradox, S. Todd Brown

Journal Articles

Section 524(g) of the Bankruptcy Code was adopted to protect unknown future asbestos personal injury victims' rights and prospects for financial recovery. To serve these goals and satisfy the demands of due process, Section 524(g) provides two basic forms of virtual representation for future victims - requiring the appointment of an independent legal representative and aligning the interests of future victims with current claimants (75% of whom must approve any plan that invokes Section 524(g)). In recent years, however, the 75% super-majority vote requirement has been transformed into a veto power wielded by a small group of law firms, who …

Enforcing Corporate Fiduciary Duties In Bankruptcy, Kelli A. Alces

Scholarly Publications

No abstract provided.

Individual Chapter 11 Reorganizations: Big Problems With The New "Big" Chapter 13, Robert J. Landry Iii

University of Arkansas at Little Rock Law Review

No abstract provided.

Timbers Of Inwood Forest, The Economics Of Rent, And The Evolving Dynamics Of Chapter 11, Edward R. Morrison

Faculty Scholarship

The Supreme Court's decision in Timbers of Inwood Forest occupies an unhappy position in bankruptcy case law. It is often remembered as a troubled interpretation of the Code, denying undersecured creditors compensation for an important source of depreciation – depreciation in the real value of a creditor's claim during a lengthy reorganization process. But Timbers was not a simple case in which a bank was denied adequate protection for lost investment opportunities. It was instead a case in which the bank tried to opt out of the bankruptcy process itself. The debtor was an apartment complex. After it entered bankruptcy, …

The Implications Of The Third Circuit's Armstrong Decision On Creative Corporate Restructuring: Will Strict Construction Of The Absolute Priority Rule Make Chapter 11 Consensus Less Likely?, Harvey R. Miller, Ronit J. Berkovich

American University Law Review

No abstract provided.

Extinguishing Security Interests: Secured Claims In Japanese Reorganization Law And Some Policy Implications To The U.S. Law, Wataru Tanaka

ExpressO

This Article examines how secured claims are treated in Japanese business reorganization law, especially in the Civil Rehabilitation Act (Minji saisei ho), which was enacted in 1999 as the new general reorganization regime in Japan. Unlike the U.S. Bankruptcy Act, the Civil Rehabilitation Act does not have automatic stay on secured claims, nor does it allow any modification of secured claims by the rehabilitation plans. However, the Civil Rehabilitation Act has a unique procedure to restrict the rights of secured creditors, which is called “the procedure of extinguishing security interests (tanpo-ken shometsu seikyu tetsuzuki).” This procedure permits a debtor to …

U.S. Airways, Petrie, Patterson

Chapter 11 Bankruptcy Case Studies

No abstract provided.

Bapcpa And Commercial Credit: Who (Sic) Do You Trust, David G. Epstein

Law Faculty Publications

Trying to understand and apply the many different provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) has caused people to yearn for the "good old days." At the National Conference of Bankruptcy Judges' (NCBJ) Annual Meeting in San Antonio in October 2005, there was a lot of talk about the "good old days" and some singing "'bout the good old days" at the NCBJ "Final Night Dinner" by a larger than life (at least as large as Sally Struthers), Wynonna Judd. And this has caused me to remember a daytime television show from my good …

Extinguishing Security Interests: Secured Claims In Japanese Reorganization Law And Some Policy Implications To The U.S. Law, Wataru Tanaka

ExpressO

This Article examines how secured claims are treated in Japanese business reorganization law, especially in the Civil Rehabilitation Act (Minji saisei ho), which was enacted in 1999 as the new general reorganization regime in Japan. Unlike the U.S. Bankruptcy Act, the Civil Rehabilitation Act does not have automatic stay on secured claims, nor does it allow any modification of secured claims by the rehabilitation plans. However, the Civil Rehabilitation Act has a unique procedure to restrict the rights of secured creditors, which is called “the procedure of extinguishing security interests (tanpo-ken shometsu seikyu tetsuzuki).” This procedure permits a debtor to …

Fao Schwartz In Chapter 22: Too Big For Its Britches, Andrea Kuban, Chris Reiley, Mary Walker

Chapter 11 Bankruptcy Case Studies

No abstract provided.

Tyson, Neal Cope, Doug Elkins

Chapter 11 Bankruptcy Case Studies

No abstract provided.

Can The Sauvegarde Reform Save French Bankruptcy Law?: A Comparative Look At Chapter 11 And French Bankruptcy Law From An Agency Cost Perspective, Robert Weber

Michigan Journal of International Law

This Note will attempt to explain the intersection of agency costs and bankruptcy law, looking first to general agency problems involved when firms are insolvent and moving next to discussions of how U.S. Chapter 11 and French bankruptcy laws attempt to address these problems. First, I will attempt to articulate the relationship between agency costs and (1) debtor control over the firm during Chapter 11 reorganizations and (2) deviations from the absolute priority rule in Chapter 11. Specifically, I will argue that creditors voluntarily accede to plans proposed by management that impair the same creditors' legal entitlements, and that this …

H.W. Johns - Manville, Steven P. Ingram, James K. Lam

Chapter 11 Bankruptcy Case Studies

No abstract provided.

Mississippi Chemical, Stacie Odencal, Jeremy Deese

Chapter 11 Bankruptcy Case Studies

No abstract provided.

Not-So-Critical Vendors: Redefining Critical Vendor Orders, Christopher D. Hunt

Kentucky Law Journal

No abstract provided.

Mayday, Mayday!: How The Current Bankruptcy Code Fails To Protect The Pensions Of Employees, Amy Lassiter

Kentucky Law Journal

No abstract provided.

In Re Adelphia Communications Corp. (Decided Dec. 5, 2003), Phillip Mahoney

NYLS Law Review

No abstract provided.

Serial Entrepreneurs And Small Business Bankruptcies, Douglas G. Baird, Edward R. Morrison

Faculty Scholarship

Chapter 11 is thought to preserve the going-concern surplus of a financially distressed business – the extra value that its assets possess in their current configuration. Financial distress leads to conflicts among creditors that can lead to inefficient liquidation of a business with going-concern surplus. Chapter 11 avoids this by providing the business with a way of fashioning a new capital structure. This account of Chapter 11 fails to capture what is happening in the typical case. The typical Chapter 11 debtor is a small corporation whose assets are not specialized and rarely worth enough to pay tax claims. There …

Tax Consequences Of Post-Petition Income As Property Of The Estate In An Individual Debtor Chapter 11 Case And Tax Disclosure In Chapter 11, Jack F. Williams, Jacob L. Todres

Faculty Publications

(Excerpt)

On April 20, 2005, the President signed the Bankruptcy Abuse Prevention and Consumer Protection Act of 20051 ("2005 Act" or "BAPCPA"). Although most of the controversy surrounding the 2005 Act centered on many of the consumer provisions, the 2005 Act also included substantial changes to business bankruptcies and the most substantial modifications of bankruptcy tax law since 1980. Generally, most provisions in the 2005 Act are effective for cases commenced on or after October 17, 2005, unless otherwise noted. However, there are at least a half dozen other dates noted, including on or after the date of enactment (April …

Adversary Proceedings In Bankruptcy: A Sideshow, Douglas G. Baird, Edward R. Morrison

Faculty Scholarship

Across a broad range of cases, the civil trial is disappearing. In the early 1960s, about twelve percent of federal civil cases were resolved by trial; by 2002 that percentage had fallen to less than two percent. This sharp decline raises important questions about the quality y and costs of decisionmaking in federal district courts. After all, these courts exist to resolve cases and controversies. It matters whether (and why) these disputes are resolved in or outside the courtroom.

Marc Galanter and Elizabeth Warren suggest that the same thing is happening in the bankruptcy courts and that there is likewise …

The A.H. Robins Bankruptcy, Jeb Gerth, Ed Meade, Ryan Russell

Chapter 11 Bankruptcy Case Studies

No abstract provided.

"Delaware Is Not A State": Are We Witnessing Jurisdictional Competition In Bankruptcy?, Marcus Cole

Vanderbilt Law Review

Over the last twelve years, the United States District Court for the District of Delaware has experienced exponential growth in the number of bankruptcy filings for large corporate debtors. This relatively recent rise in Delaware bankruptcy venue cannot, on its face, be explained by Delaware's eighty-five-year preeminence in the race for corporate charters, since the advantages most often postulated for Delaware's dominance in corporate law do not carry over to corporate bankruptcy. The state has limited influence over federal bankruptcy law and virtually no control over the selection of federal bankruptcy judges. This rise of Delaware bankruptcy venue, or Delawarization …

Chapter 11 Reorganization Cases And The Delaware Myth, Harvey R. Miller

Vanderbilt Law Review

Since the mid-1990s, there has been a spirited debate concerning the emergence of the United States Bankruptcy Court for the District of Delaware (the "Delaware Bankruptcy Court") as the virtual Chapter 11 capital for distressed debtor corporations. The "Delawarization" of corporate reorganizations under title 11 of the United States Code (the "Bankruptcy Code"), which occurred during the 1990s as a result of the migration of Chapter 11 cases of large enterprises from other venues to Delaware, has provoked a stream of academic articles debating the consequences of Delaware's emergence. Armed with statistics purporting to demonstrate a high rate of recidivism …

Introduction To The Symposium "Convergence On Delaware: Corporate Bankruptcy And Corporate Governance", Robert K. Rasmussen, Charles M. Elson

Vanderbilt Law Review

Bankruptcy is back. The use of Chapter 11 by large, publicly held firms was a subject of much debate in the academic and popular press in the late 1980s and the early 1990s. Firms such as Texaco, Revco, LTV, Federated Department Stores, Maxwell Communications, TWA, and Eastern Airlines all filed for bankruptcy during that time. The economic boom of the mid- and late 1990s, however, resulted in a relative dearth of high-profile bankruptcy cases. The recent economic downturn has moved corporate reorganizations back into the spotlight. The Chapter 11 filings by firms such as Enron, Global Crossing, the Loewen Group, …

"Retail Choice" Is Coming: Have You Hugged Your Utilities Lawyer Today? (Part Ii), Nancy B. Rapoport, Jeffrey D. Van Niel

Scholarly Works

This part of the article provides a discussion on the intersection of utilities law and bankruptcy law, pre-BAPCPA. (Part I provides a primer on the history of utilities regulation.)

"Retail Choice" Is Coming: Have You Hugged Your Utilities Lawyer Today? (Part I), Nancy B. Rapoport, Jeffrey D. Van Niel

Scholarly Works

This part of the article provides a primer on the history of utilities regulation. (Part II provides a discussion on the intersection of utilities law and bankruptcy law, pre-BAPCPA.)

Whither The Race? A Comment On The Effects Of The Delawarization Of Corporate Reorganizations, Randall Thomas, Robert K. Rasmussen

Vanderbilt Law School Faculty Publications

Recent empirical work has demonstrated that large, publicly held firms tend to file for bankruptcy in Delaware. In our previous work, we have documented this trend, and argued that it may be efficient for prepackaged bankruptcies, while it unclear if it is efficient for traditional Chapter 11 cases. In this piece, we respond to LoPucki and Kalin's assertion that Delaware bankruptcy court performs worse than others. They base this claim on the observation that firms that file for bankruptcy in Delaware are more likely to file for bankruptcy a second time than are firms that file in another jurisdiction. We …

Rejection Versus Termination: A Sublessee's Rights In A Lease Rejected In A Bankruptcy Proceeding Under 11 U.S.C. § 365(D)(4), Vivek Sankaran

Michigan Law Review

When a party files for bankruptcy under chapter 11 of the United States Code, the court typically appoints a trustee to handle all of the party's financial obligations. The trustee's responsibilities include investigating the financial condition of the debtor, the operation of the business, the desirability of continuing the business, and any other matter relevant to the disposition of the bankrupt estate. If a bankrupt party holds a commercial lease, the trustee possesses two options for dealing with the lease. One option is to reject the lease, which ends the bankrupt party's obligation to adhere to the provisions of the …

The Failure Of Public Company Bankruptcies In Delaware And New York: Empirical Evidence Of A "Race To The Bottom", Lynn M. Lopucki, Sara D. Kalin

UF Law Faculty Publications

In the early 1990s, Delaware replaced New York as the jurisdiction of choice for the bankruptcy reorganization of large, public companies. In an empirical study of 188 companies emerging from bankruptcy reorganization from 1983 through 1996, the authors found that the refiling rates for public companies reorganized in Delaware and New York were about five to seven times the refiling rates for companies reorganized in other courts. Nine of the thirty large, public companies emerging in Delaware from 1991 to 1996 (30%) have already refiled. New York rates were higher during the period of New York's dominance than during the …

Corporate Bankruptcy: Treatment Of Filing Year Income Tax -- A Suggested Approach, Jacob L. Todres

Faculty Publications

(Excerpt)

The focus of this article is the proper treatment in a chapter 7 or 11 bankruptcy proceeding of the federal income tax incurred by a corporate debtor for the year in which the bankruptcy petition is filed, the so-called "straddle-year." Bankruptcy law requires that the straddle-year income tax be apportioned between the pre-petition and post petition portions of the year for priority purposes. Yet, neither the relevant statutes nor the reported cases provide a principled method of apportionment. Under relevant tax law there are only two possible methods of apportionment: (1) to apportion ratably over time; or (2) to …