Bankruptcy Law Commons^™

Do Bankruptcy Judges Belong In Chambers? Rethinking Inherent Civil Contempt Power In Bankruptcy, Abigail B. Willie

Faculty Articles

The bankruptcy court is the face of the federal judiciary to much of the American public. Almost as many cases are filed in bankruptcy courts every year as are filed in the federal district courts and circuit courts combined. And in each bankruptcy case, there are often dozens or more affected parties. As such, it is critical that the public has confidence in the role of the bankruptcy court and its judges. Yet, since the creation of the Bankruptcy Code in 1978, the non-Article III bankruptcy system has faced seemingly never-ending challenges to subject matter jurisdiction in the bankruptcy context …

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 …

Ethics & Independence In Trump’S War On Big Law, Christopher D. Hampson, Elise Bernlohr Maizel

UF Law Faculty Publications

In his second term, President Donald Trump has launched an unprecedented assault on the nation's largest law firms. Through a series of executive orders and highly unusual EEOC (Equal Employment Opportunity Commission) actions, the Trump regime has sought to undermine the independence of the private bar. In response, targeted firms have been forced to make a choice: to appease the administration or to fight back. This Essay considers those choices the interrelated nature of parallel settlements and suits-and the choice that the majority of firms have made to stay silent. We argue that Big Law's independence is essential and that …

False Venue Claims Signed Under Penalty Of Perjury, Lynn M. Lopucki

UF Law Faculty Publications

In a study of venue for the one hundred ninety-five large, public company bankruptcies filed from 2012 through 2021, I discovered nine cases (5 percent) in which the companies’ venue claims were in apparent conflict with what the debtors themselves stated on their petitions to be the locations of the companies’ principal places of business and principal assets. Nor were the venue claims justified by domicile. Eight of the nine proceeded to confirmation in an improper venue.

Although it is routine for large, public companies and the courts in which they file to ignore the Bankruptcy Code and Rules, these …

Mission Creep Or Mission Failure? A Review Of Melissa Jacoby's Unjust Debts, Christopher D. Hampson

UF Law Faculty Publications

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 …

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 …

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 …

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.

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 …

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.

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 …

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.