Bankruptcy Law Commons^™

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.

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. …

The Bankruptcy Of Purdue Pharma In The Wake Of Big Tobacco, Jacob Hedgpeth

University of Colorado Law Review Forum

Two distinct public health crises shook the United States from 1954 to 2023: nicotine addiction from tobacco products, and opioid addiction starting with Purdue Pharmaceutical’s OxyContin. These crises resulted in millions of deaths and immense costs to the country as a whole. The nicotine crisis ended in a national settlement against four major tobacco manufacturers, which yielded hundreds of millions of dollars for those harmed by these products. The owners of Purdue, however, opted for bankruptcy instead of settlement, keeping the majority of the money made from OxyContin for Purdue’s owners, the Sackler family.

These four tobacco giants and Purdue …

Duped By Dope: The Sackler Family’S Attempt To Escape Opioid Liability And The Need To Close The Non-Debtor Release Loophole, Bryson T. Strachan

University of Richmond Law Review

The opioid epidemic continues to rage on in the United States, ravaging its rural populations. One of its main causes? OxyContin. Purdue Pharma (“Purdue”), the maker of OxyContin, aggressively marketed opioids to the American public while racking up a fortune of over $13 billion dollars for its owners,3 the Sackler family. As a result, roughly 3,000 lawsuits were filed against Purdue and members of the Sackler family. Generally, the lawsuits alleged that Purdue and members of the Sackler family knew OxyContin was highly addictive yet aggressively marketed high dosages of the drug and misrepresented the drug as nonaddictive and without …

Debtor Embezzlement Of Collateral, Jonathon S. Byington

Faculty Law Review Articles

This Article is about collateral and the “embezzlement” exception to
discharge under § 523(a)(4) of the Bankruptcy Code. Under the Uniform
Commercial Code, collateral is property subject to a security interest. The
“embezzlement” exception to discharge requires a debtor fraudulently
appropriate entrusted property. A debtor fraudulently appropriates a
security interest when the debtor, in conjunction with circumstances
indicating fraud, transfers collateral or proceeds of collateral to a transferee
who takes free of the security interest. A secured party “entrusts” its
security interest to a debtor in situations where a debtor has power or
control over collateral. There is a split …

Love Hertz: Corporate Groups And Insolvency Forum Selection, John A. E. Pottow

Law & Economics Working Papers

The Hertz bankruptcy got a lot of attention, including for its bizarre equity trading. A less heralded but more significant legal aspect of that insolvency, however, was its complex interaction of cross-border insolvency proceedings.

This article discusses the “centripetal” and “centrifugal” forces in the Hertz case that counselled a U.S.-based centralized solution for an international enterprise comprising over 10,000 branches centripetally but also accommodated centrifugal European resistance to subject directors to the consequences of filing their entities in a foreign jurisdiction. This not uncommon constellation of incentives required not a COMI shift but what this article terms a jurisdiction shift …

The Kinder, Gentler Irs? Where?, Harvey Gilmore

DePaul Business & Commercial Law Journal

No abstract provided.

Overcoming The Presumption Of The Deceitful Debtor, Rebecca Rhym

Georgia State University Law Review

Congress codified presumed consumer debtor abuse into the Bankruptcy Code with the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. Since then, distrust of low- and middle-class debtors has permeated the legal system, evidenced most visibly by how easily legislators are swayed by creditor lobbyists’ rhetoric. This distrust has also reached our courts, where judges invoke the doctrine of judicial estoppel to bar debtor-plaintiffs from pursuing tort claims undisclosed in bankruptcy petitions. Instead of addressing societal problems underlying the high number of bankruptcy filings, like financial literacy and predatory lending, this Note argues that lawmakers and courts are perpetuating …

Is There Force In Force Majeure After Covid-19 Or In The Freedom To Negotiate Risk?, Sara Lazarevic

University of Miami Inter-American Law Review

This note explores the impact COVID–19 has had on contracting parties who have attempted to implicate force majeure provisions. An inquiry of recent cases reveals varying degrees of success and tension when parties turn towards force majeure text. This Note analyzes common law alternatives, discusses the implication of force majeure clauses as applied under Mexican and American law, highlights the implications that have played out in recent court decisions, and discusses post–pandemic implications that could affect how parties conduct cross–border transactions in the future.

The Evolution Of Chapter 11: How Corporate Restructuring Has Evolved And Its Important Role In The Recovery Of A Struggling Economy, Eduardo Cervantes

DePaul Business & Commercial Law Journal

No abstract provided.

Covid-19 Vs. Constitution; Limited Government's Unlimited Response, John A. Losurdo

DePaul Business & Commercial Law Journal

No abstract provided.

The "No License, No Chips" Policy: When A Refusal To Deal Becomes Reasonable, Sheng Tong

DePaul Business & Commercial Law Journal

No abstract provided.

The Dark Triad: Private Benefits Of Control, Voting Caps And The Mandatory Takeover Rule, Jorge Brito Pereira

DePaul Business & Commercial Law Journal

No abstract provided.

Kepastian Hukum Kantor Perwakilan Badan Usaha Jasa Konstruksi Asing Dalam Melakukan Kegiatan Usaha Di Indonesia, Emy Mutia Zahrina

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Representative offices are present in Indonesia in order to meet the needs of global economic growth in all countries. Multinational companies expand their business to other countries through relocation policies. The aim is none other than an effort to reduce production costs through a number of comparative advantages possessed by Indonesia as well as seizing such a large market for these products, and through this way multinational companies benefit. The presence of representative offices in Indonesia is regulated by Presidential Decree Number 90 of 2000 concerning Representative Offices of Foreign Companies. Through the Presidential Decree, the government limits the scope …

Cross-Border Transfer Pricing Sebagai Tindakan Tax Avoidance, Elleanor Rigby Bangun

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Transfer Pricing refers to pricing transaction within and between enterprises situated in different countries and belong to the same multinational group. Cross-border transaction inevitably affects international taxation, especially when multinational enterprises encounter two or more countries that apply different tax collection systems. Consequently, a Tax Treaty (Perjanjian Penghindaran Pajak Berganda/P3B) is made to resolve issues involving double taxation. However, since the Tax Treaty’s benefits vary by country, the investors or companies tend to abuse the agreement in order to gain the most profitable benefits or incentives. Abusing the benefits of Tax Treaty (P3B) could be categorized as an act against …

Resentralisasi Kewenagan Pengelolaan Pertambangan Mineral Dan Batura, Muhammad Salman Al Farisi

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Amendments to Law No. 4 of 2009 became Law No. 4 of 2009 withdrawing almost all local government authority into central authority. Leaving room for delegation of some of the authority of the Central Government to provincial regional governments for the issuance of IPR and SIPB, even district-city governments no longer have space for authority over coal mineral mining matters. the authority of provincial or district/city regional governments in mining affairs, is a concurrent matter which in its handling involves the central government and regional governments, withdraws most of the authority and does not involve regional governments, of course it …