Bankruptcy Law Commons^™

Show Me The Money: How Bankruptcy Courts Could Become The Most Equitable Mass Tort Forum, Olivia Maier

Washington and Lee Journal of Civil Rights and Social Justice

The Texas Two-Step has emerged as a dangerous bankruptcy maneuver for companies to defend against mass tort liability. The process allows a company to allocate all of its tort liability to a newly created company which then files for bankruptcy. The Bankruptcy Code provides instantaneous benefits for that new company, which tort victims are left unable to proceed with their claims. This has resulted in an inequitable process, and outcomes, for those victims as seen by the recent Johnson & Johnson Texas Two-Step. While this process is unjust, it has raised an interesting question: could a bankruptcy court become the …

Silencing Litigation Through Bankruptcy, Pamela Foohey, Christopher K. Odinet

Faculty Scholarship

Bankruptcy is being used as a tool for silencing survivors and their families. When faced with claims from multiple plaintiffs related to the same wrongful conduct that can financially or operationally crush the defendant over the long term—a phenomenon we identify as onslaught litigation—defendants harness bankruptcy’s reorganization process to draw together those who allege harm and pressure them into a swift, universal settlement. In doing so, they use the bankruptcy system to deprive survivors of their voice and the public of the truth. This Article identifies this phenomenon and argues that it is time to rein in this destructive use …

Arguing Arbitration Waiver After Morgan V. Sundance A Path To Hold Debt Buyers Accountable For Abusive Collection Litigation, Noa Gutow-Ellis

Cardozo Journal of Equal Rights & Social Justice

The note examines the impact of the Supreme Court's decision in Morgan v. Sundance on consumers' ability to challenge debt buyers in court under the Fair Debt Collection Practices Act (FDCPA). It argues that Morgan has provided a significant opportunity for consumers to argue that debt buyers have waived their right to arbitration, thereby allowing consumers to pursue FDCPA claims in court rather than being forced into arbitration. The article highlights the abusive practices of debt buyers, particularly their targeting of low-income and minority communities, and proposes strategies to hold debt buyers accountable.

Silencing Litigation Through Bankruptcy, Pamela Foohey, Christopher K. Odinet

Articles

Bankruptcy is being used as a tool for silencing survivors and their families. When faced with claims from multiple plaintiffs related to the same wrongful conduct that can financially or operationally crush the defendant over the long term—a phenomenon we identify as onslaught litigation—defendants harness bankruptcy’s reorganization process to draw together those who allege harm and pressure them into a swift, universal settlement. In doing so, they use the bankruptcy system to deprive survivors of their voice and the public of the truth. This Article identifies this phenomenon and argues that it is time to rein in this destructive use …

The Housing Bubble And Consumer Banruptcy (Parts Iii And Iv), David G. Carlson

Articles

During the COVID pandemic housing prices have soared. Consumers who have filed for bankruptcy are now looking at enormous realized and unrealized capital gains. This article assesses the chances that these consumer debtors can keep these gains out of the hands of their creditors. Part II of this two-part article addresses chapter 13 issues, which concern plan modification by the chapter 13 trustee to capture realized and unrealized capital gains. It also covers whether a trustee in a converted case can capture these gains. The law of the coverted chapter 7 case is spectacularly contradictory.

Brief For Amici Curiae Bankruptcy Law Professors In Support Of Petitioner, Pamela Foohey

Amicus Briefs

Amici, whose names and affiliations are set forth in alphabetical order on Appendix A, are law professors who study the United States’ bankruptcy system. They have published in some of the nation’s leading academic journals on corporate reorganization issues, including the case sub judice. They write solely based on their concern about the effect that the opinion below will have on this system.

Petitioner argues that the decision of the Second Circuit Court of Appeals in this case should be reversed because the United States Bankruptcy Code does not permit the nonconsensual nondebtor release (“NDR”) of the Debtors’ owners (the …

Brief Of Amici Curiae Law Professors In Support Of Appellant On The Role Of Bankruptcy Examiners In Chapter 11 Reorganization, Pamela Foohey

Amicus Briefs

Amici curiae, whose biographical information appears on Appendix A (“Amici”), are professors at law schools in the Third Circuit and around the nation. They study and write extensively about bankruptcy and related business law subjects. Their work has appeared in many of the nation’s leading academic journals, and includes path-breaking scholarship on the use of bankruptcy examiners in freefall and cryptocurrency cases.

Amici share a commitment to the transparent and efficient administration of the chapter 11 system, and a belief that the interest of the public and creditors in this large and notorious chapter 11 case must be vindicated …

Proposal For A New Regulation Of Speculation In Sovereign Debt, Justin Vanderschuren

Fellow, Adjunct, Lecturer, and Research Scholar Works

Over the past few years, several countries have undertaken to regulate the speculation in sovereign debt pursued by so-called “vulture funds.” The various realizations and attempts present a series of loopholes that make a new regulation of this speculation advisable. A proposal for a new regulation, legally justified and precisely framed, is all the more desirable given that some legislators, in particular from the New York State Legislature, have recently taken up the issue of speculation.

Debt sustainability is the only realistic regulation benchmark. It is inconceivable to ban debt purchases on the secondary market as this would significantly impact …

Sovereign Debt Speculation: A Necessary Restraint Justified By A Concern For Debt Sustainability, Justin Vanderschuren

Fellow, Adjunct, Lecturer, and Research Scholar Works

The actions of funds speculating in sovereign debt, frequently nicknamed “vulture funds”, are often roundly criticized. These funds purchase distressed debts on the secondary market at reduced prices and then seek payment in court at face value plus interest and fees. Although their actions are legally justified, so-called “vulture funds” are vilified due to the negative impact of their activities on sovereign debtors and their population. While there is a strong demand for regulating sovereign debt speculation, various solutions already exist but are, in many ways, insufficient. This article argues for the adoption of a tailored regulation of the speculative …

Consumer Protection & Bankruptcy Law—Rewarding Repayment: Removing The Fear From Crushing Student Loan Debt Through Alternatives To Discharge, Sarah Holden

University of Arkansas at Little Rock Law Review

No abstract provided.

Towards A New Approach For The Choice Of Insolvency Forum, Anthony J. Casey, Aurelio Gurrea-Martinez, Robert K. Rasmussen

Research Collection Yong Pung How School Of Law

The UNCITRAL Model Law on Cross-Border Insolvency (“MLCBI”) turned 26 years in 2023. During this period, it has been adopted in more than 60 jurisdictions around the world and it has significantly contributed to successful management of insolvency proceedings with a cross-border element. Therefore, the MLCBI is an achievement that the international insolvency community needs to celebrate. The MLCBI is built on the idea of “modified universalism”. Therefore, it envisions the commencement of a main procedure in a single jurisdiction even if non-main proceedings can also be opened and the laws of other jurisdictions can still be relevant for certain …

The Myth Of Debtor-Friendly Or Creditor-Friendly Insolvency Systems: Evidence From A New Global Insolvency Index, Aurelio Gurrea-Martinez

Research Collection Yong Pung How School Of Law

This article seeks to test the validity of the traditional classification of insolvency systems as debtor-friendly or creditor-friendly jurisdictions. For that purpose, the article develops a novel Global Insolvency Index (“GII”) that seeks to measure the attractiveness of reorganization procedures from the perspective of debtors, secured creditors and general unsecured creditors. After assessing the attractiveness and evolution of reorganization procedures in 53 jurisdictions around the world, it will be shown that insolvency systems can be pro-debtor and pro-creditor, anti-debtor and anti-creditor, or somewhere in the middle. Hence, the GII developed in this article shows that the traditional classification of insolvency …

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 …

Federal Data Privacy Regulation: Do Not Expect An American Gdpr, Matt Buckley

DePaul Business & Commercial Law Journal

No abstract provided.

Welcome Address, Lauren Mckenzie

DePaul Business & Commercial Law Journal

No abstract provided.

Front Matter

DePaul Business & Commercial Law Journal

No abstract provided.

Finding A Port In The Storm: Constitutional Claims Find Protection Under The Fifth Amendment In Municipal Bankruptcy In In Re Financial Oversight & Management Board, Mark Lammey

Villanova Law Review (1956 - )

No abstract provided.

Discharge Discrimination, Nicole Langston

Vanderbilt Law School Faculty Publications

Although the Bankruptcy Code is facially neutral, the consumer bankruptcy discharge provisions produce anomalies that run counter to bankruptcy's internal principles of not forgiving debt that is based on misconduct or that implicates a public policy concern. For example, the discharge provisions allow some individuals to discharge debt that stems from civil rights violations or tortious discrimination. In contrast, the Bankruptcy Code precludes some debtors from debt relief based on narrow views of misconduct or misconceptions about moral hazards. These individuals who file for bankruptcy owe debts that generally cannot be forgiven, like civil and criminal fees and fines and …

Judicial Interpretation By Bankruptcy Courts And The Department Of Education Regarding The Application Of The Undue Hardship ("Brunner") Standard To Student Loan Discharges, Anda Totoreanu

Cardozo Journal of Equal Rights & Social Justice

The note examines the stringent application of the Brunner standard in student loan discharge cases, highlighting the inconsistent judicial interpretations and the DOE's rigid stance, which disproportionately affects minority communities. It advocates for reforms, including legislative changes and judicial discretion, to address the systemic inequities.

The Housing Bubble And Consumer Bankruptcy (Parts I And Ii), David G. Carlson

Articles

During the COVID pandemic housing prices have soared. Consumers who have filed for bankruptcy are now looking at enormous realized and unrealized capital gains. This article assesses the chances that these consumer debtors can keep these gains out of the hands of their creditors. Part I of this two-part article addresses chapter 7 issues, which concern lien stripping, abandonment, and monetary exemptions. It also addresses lien stripping in chapter 13 cases. Part II will address whether a chapter 13 debtor must surrender appreciation value to the chapter 13 trustee or to a trustee in a converted chapter 7 case.

Evaluating Nondebtor Releases: How Purdue Pharma Emphasizes The Need For Congress To Resolve The Decades-Long Debate, Sarah Melanson

Connecticut Law Review

In 2019, Purdue Pharma filed a petition for relief under Chapter 11 of the Bankruptcy Code (the “Code”) due to an onslaught of lawsuits arising from its alleged contribution to the opioid crisis. The proposed plan of reorganization became notorious for its release of the Sackler family––nondebtors–– from future civil liability relating to opioid litigation. For over 30 years, Federal Circuit Courts of Appeal have split on whether the Code allows release of nondebtors. A majority of circuits have recognized that the Code’s grant of broad, discretionary equitable powers authorizes nondebtor releases. The recent emergence of several mass-tort bankruptcies containing …

Bankruptcy, John T. Laney Iii, Thomas Alec Chappell, Siena Berrios Gaddy

Mercer Law Review

This Article focuses on bankruptcy opinions issued by the Supreme Court of the United States and the United States Court of Appeals for the Eleventh Circuit. Topics addressed include constitutionality of the 2017 U.S. Trustee quarterly fee increase; statutory mootness under 11 U.S.C. § 363(m); retroactive application of § 505(a)(2)(C); exemption of traditional and Roth IRAs from a debtor’s bankruptcy estate; scope of “claim” under § 101(5); effect of post-petition transfers on the new value preference defense; scope of the fiduciary capacity exception from discharge of § 523(a)(4); and errors in debtor’s name in a financing statement.

Erisa’S Fiduciary Fantasy And The Problem Of Mass Health Claim Denials, Katherine T. Vukadin

University of Richmond Law Review

Over 100 million Americans face healthcare debt. Most of those in debt have health insurance, with the debt often springing from services people thought were covered. Before and even after receiving care, those seeking coverage must run a gauntlet of obstacles such as excessive pre-authorization requests, burdensome concurrent review of care, and retrospective review, which claws back payment after a treatment is pre-authorized and payment made. Increasingly, this procedural tangle leaves people with unwarranted and unexpected medical bills, quickly spiraling them into debt.

Who polices health insurers’ claims practices? What keeps insurance companies from designing overly burdensome pre-authorization requirements or …

Abrogating Tribal Sovereign Immunity Via The Bankruptcy Code, Amanda Hager Freudensprung

University of Arkansas at Little Rock Law Review

No abstract provided.

The Scrivener's Error: How Bankruptcy Judges Overrule Health Experts On Medicare Decisions, Nicolas C. Oehler

Akron Law Review

There is a circuit split over the interpretation of 42 U.S.C. § 405(h), which requires providers to exhaust their remedies with the Department of Health and Human Services (HHS) before proceeding to court. This split originates from a recodification that omitted several jurisdictional grants from § 405(h), leaving courts to decide whether to continue interpreting the statute as Congress intended or begin interpreting the statute’s plain language. Complicating this split, a backlog of claims in HHS’s appeal systems prevents speedy adjudication. This delay leaves providers searching for other adjudicatory options for their Medicare claims, such as bankruptcy courts.

As initially …

Undue Mental Hardship: A Case For Standardized Treatment Of Mental Health Issues In Student Loan Discharge Proceedings, Abigail Stone

BYU Law Review

No abstract provided.

Covid-19 And The Rise In Commercial Real Estate Bankruptcies: The Path To Reach The Goals Of Bankruptcy Code §365(D)(3), Jefferey Kirwin

The Journal of Business, Entrepreneurship & the Law

This article will explore and explain the two approaches circuit courts use when § 365(d)(3) of the Bankruptcy Code is at issue and will analyze the best approach in the context of COVID-related increase in commercial tenants’ bankruptcy claims. Specifically, this article will analyze how each approach affects the parties by explaining which party is protected at the different stages, and will explain what and when a tenant must pay a landlord. This article will then describe options each party could pursue at different stages in the bankruptcy and outline how each option affects the payment to the landlord. Lastly, …

Penerapan Itikad Baik Dan Kebebasan Berkontrak Pada Jaminan Kebendaan Berdasarkan Perjanjian Fasilitas Pinjaman (Facility Agreement) Dalam Sengketa Kepailitan: Studi Kasus Putusan Pengadilan Niaga Nomor 3/Pdt.Sus-Lain Lain/2021/Pn Niaga Mdn Jo. Nomor 7/Pdt.Sus-Pkpu/2018/Pn Niaga Mdn, Tarissa Zahira Hidayansyah, Prof. Dr. Rosa Agustina, S.H.,M.H

Lex Patrimonium

The principle of good faith is a general principle of contract law used as a form of limitation of the parties in exercising freedom of contract. The principle of good faith is used to determine the parties' intentions in carrying out the agreement, which is assessed based on statutory regulations, decency, customs, good decency, and public order, as emphasized in articles 1337 and 1339 of the Civil Code. However, there is no clear definition of interpreting good faith in a particular legal action which brings a variety of perspectives and opinions in interpreting the good faith of a legal action. …

Dirty Dancing: Is The Texas Two-Step A Bad Faith Filing?, Katharine H. O'Neill

Fordham Law Review

The Texas Two-Step is both a style of line dancing and a legal maneuver used by several large, profitable companies to enable a newly created entity to access the bankruptcy system and, thus, discharge the tort liabilities of its predecessor. This type of filing has been criticized by some as a tool used by healthy companies to evade responsibility for their tortious conduct and lauded by others as an efficient means to achieve a global resolution of crushing mass tort liability. Whether Texas Two-Step filings may properly access the bankruptcy courts is a question governed by § 1112(b) of the …

Comments On Federal Trade Commission Non-Compete Ban Proposed Rule, Matter No. P201200, Chaz D. Brooks

Scholarly Articles in Law Reviews & Journals

Within signed law professors and law students submitted this letter to the Federal Trade Commission, writing in their individual capacities, not as agents of their affiliated institutions, in support of the Federal Trade Commission’s proposed rule to ban most non-compete clauses (the “Proposal”) as an unfair method of competition.

This letter offers comments in response to areas where the FTC has requested public comment. To make our views clear, this letter contains the following sections: I. Summary of the Proposal; II. The Commission Should Consider Expanding Its Definition of Non-Compete Clauses to Prevent Employers from Requiring Workers to Quit Before …