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Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Corporate Scenarios: Drawing Lessons From History, Madison Condon

Seattle University Law Review

As corporations are increasingly pressed to reveal information about their exposure to climate-related risks, they are often asked to undertake and disclose the outcome of “scenario analysis.” In this exercise, corporations, including financial institutions, examine how their business would fare under different pathways the future may take. One oft-used scenario, for example, is the International Energy Agency’s “Net-Zero by 2050: A Roadmap for the Energy Sector.” This Essay presents a history of the use of scenarios as a corporate planning tool, particularly in the oil industry, arguing that it is key for understanding our present moment and the role of …

Dark Accounting Matter, Colleen Honigsberg

Seattle University Law Review

Physicists calculate that approximately 85% of the matter in the universe is composed of “dark matter” that “does not absorb, reflect, or emit electromagnetic radiation and is therefore difficult to detect.” The S&P 500 currently trades at a price-to-book value of 4.2, suggesting that book value accounts for less than 20% of the S&P 500’s market value. The remaining 80% appears nowhere in these firms’ balance sheets—it is invisible to contemporary accounting techniques and constitutes “dark accounting matter.”

Some “dark accounting matter” is composed of factors commonly described as components of “ESG.” Human capital, for example, is an intangible asset …

The Bankruptcy Off-Ramp From Complex Civil Litigation: Purdue Pharma, Opioids, And Unorthodox Civil Procedure In Public Harms Cases, Abbe R. Gluck

Indiana Law Journal

For civil procedure scholars, bankruptcy has become exciting. Last year, the United States Supreme Court decided for the first time a case that implicated both the core of the national opioids litigation and one of the most important developments in modern civil procedure—namely, the enormous amount of unorthodox procedural innovation that is happening in the courts as parties strive to reach global settlement.

The decision, Harrington v. Purdue L.P., took almost seven months despite the grant of expedited review—an indication that the result was likely not easily reached. In June 2024, the Court, voting five to four, reversed the Second …

Alternatives To Delaware? Evaluating Corporate Law In Nevada, Texas, And Wyoming, Joseph Landau, Bailey Swartz, Anthony Rickey, Robert Ragazzo, Benjamin Edwards, George A. Mocsary

Fordham Journal of Corporate & Financial Law

No abstract provided.

Consider This: Make-Whole Premiums As Unmatured Interest, Kathryn G. Berman

Fordham Law Review

Make-whole premiums have become mainstream in corporate bond indentures because of the protections they provide to lenders. Although they are generally enforceable as a matter of contract law, make-whole premiums have been treated inconsistently in bankruptcy courts in several areas. One point of inconsistency is whether make-whole premiums are treated as liquidated damages or unmatured interest. Such a determination has significant implications on the allowance of the claim and its recovery from an insolvent debtor.

Most bankruptcy courts have treated make-whole premiums as liquidated damages and allowed their recovery in creditors’ claims. In doing so, their analyses have treated liquidated …

Bankruptcy Appeal Barriers, Jonathan M. Seymour

Washington and Lee Law Review

Appeals in bankruptcy do not look like appeals elsewhere in the federal court system. In particular, bankruptcy appeal barriers are strikingly distinctive. These barriers serve outright to block an appeal from being decided. An appellate court may dismiss an appeal, rather than consider the merits, if facts on the ground have changed so much since the original decision that providing a remedy to an appellant, even if victorious, would not be prudent. Take ongoing litigation in the Boy Scouts bankruptcy case. A plan of reorganization was confirmed fixing the entitlements of victims to compensation. Dissenting creditors argued bitterly the plan …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Assessing The Post-Purdue Landscape Of Consensual Third-Party Releases Through Contract Law, Kaori Nagase

American University Law Review

In Harrington v. Purdue Pharma L.P., the Supreme Court invalidated non-consensual third-party releases in Chapter 11 bankruptcy plans. In doing so, however, the Court left open the question of what constitutes valid consent to a release. This Comment argues that lower courts must now require a higher threshold of affirmative consent—particularly in mass-tort bankruptcies involving highly culpable non-debtors. In light of Purdue’s implication that third-party releases are anchored in contract law principles, this Comment suggests that courts should evaluate what constitutes adequate consideration for a release.

Strategies For Unsecured Creditors To Mitigate The Pro-Debtor Policies Of Subchapter V And Suggestions For Changes To The Bankruptcy Code, Micah Mays

Oklahoma Law Review

No abstract provided.

Discharging Government Debt, Nicole Langston

Vanderbilt Law Review

The bankruptcy system tries to strike a balance between a fresh economic start through debt forgiveness, or discharge, and the need to repay creditors. When the debt is owed to the government, however, the scale seemingly tips toward repayment because of the government’s role in providing essential services to society. But there are certain debts owed to the government that can be forgiven in bankruptcy and some that cannot. The consumer bankruptcy system does not forgive government-owed child support debt, penal debt, and student loan debt, which are disproportionally carried by poor women and racial minorities, but the system does …

Controlling The Mischief Of New York’S Foreclosure Abuse Prevention Act Through Constitutional Pre-Emption, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

FAPA aimed to ease the burdens of long-delayed foreclosure proceedings by restating the operation of the statute of limitations. It contains provisions across several sections of state statutes that specify that once the six year statute of limitations on actions to foreclose commences, typically by the acceleration of the balance due on the promissory note and commencement of suit, it continues to run, even after the parties have entered into a workout agreement and have dismissed the complaint. By express terms, the Act had immediate effect, such that those lenders who withdrew complaints pursuant to a workout agreement before the …

Lambat Asal Selamat: The Slow But Safe Twenty-Five Year Recalibration Of Personal Bankruptcy In Malaysia, Jason J. Kilborn

South Carolina Journal of International Law and Business

A popular Malay proverb advises, “[L]et it be slow, as long as it is safe” (biar lambat asal[kan] selamat),1 combining the sentiments of two similar English proverbs: “haste makes waste,” and “slow and steady wins the race.” These principles certainly seem to have guided Malaysian lawmakers in the quarter-century, multistage development of the most important element of modern bankruptcy law: the discharge. Adopted in 1967,2 Malaysian bankruptcy law has long included a very limited debt discharge, but as it left more and more economically debilitated debtors in perpetual bankruptcy limbo, policymakers became dissatisfied with leaving a huge and growing mass …

Creditors, Shareholders, And Losers In Between: A Failed Regulatory Experiment, Albert H. Choi, Jeffery Zhang

Articles

In the aftermath of the 2007–08 Global Financial Crisis, regulators encouraged many of the world’s largest banks to hold a new type of regulatory instrument with the goal of improving their safety and soundness. The regulatory instrument was known as a “CoCo,” short for contingent convertible bond. CoCos are neither debt nor equity. They are something in between, designed to give the bank a shot in the arm during times of stress. Many of the largest international banks have issued CoCos worth hundreds of billions of dollars. After more than ten years—a decade that includes the collapse of Credit Suisse …

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.

The Employees’ Dilemma: Balancing Internal Reporting, Whistleblowing, And Insider Trading Risks, Geeyoung Min

Seattle University Law Review

The Essay examines how recent developments in insider trading regulations and whistleblower reward programs can lead to unintended and counterproductive results of discouraging employees from using internal reporting channels within corporate compliance programs. While the presence of a robust and well-functioning corporate compliance program is a critical factor both in mitigating the level of public enforcement actions against companies and in protecting corporate managers from liability in private litigation, these programs often provide little incentive for employees to report potential misconduct internally.

Corporate compliance programs are designed to promote the upward information flow within the company, which is essential for …

Understanding The Big Three’S Wavering Support Of Environmental And Social Shareholder Proposals, Jeff Schwartz, Jefferson Jensen

Seattle University Law Review

Because of their substantial equity portfolios, BlackRock, Vanguard, and State Street (the Big 3) are central players in corporate governance. It is, therefore, critical to understand how they vote. One puzzle is that their support for shareholder proposals on environmental and social matters appears to waiver. In 2020, for instance, BlackRock supported 11.1% of environmental proposals at S&P 500 firms. In 2021, it seemingly reversed course, supporting 55.2%. It then flipped again, supporting 32.1% in 2022. Such statistics suggest that the Big 3 are constantly changing their views on these topics. This Article seeks to better understand whether this is …