Bankruptcy Law Commons^™

Tactical Restructurings, Diane Lourdes Dick

Fordham Law Review

The traditional legal account of a corporate debtor’s journey into and through bankruptcy reorganization naturally focuses on legal rights and entitlements, such as obligations arising under the debtor’s existing agreements and rights articulated in the U.S. Bankruptcy Code. But the traditional legal account does little to probe why these prior agreements and transactions were entered into in the first place, and how they interact with the bankruptcy system to generate predictable outcomes. Rather, the traditional legal account applies a presumption that the debtor’s financial characteristics, qualities, and features (what this Article calls “restructuring attributes”) are not premeditated, at least insofar …

Surviving Lender Violence: The Case For Resuscitating Contractual Good Faith In New York, Zachary T. Hanusek

Fordham Law Review

In recent years, lender violence has become the preferred term for a rapidly developing restructuring market centered on the premise that a subset of lenders in a syndicate can increase their own recovery prospects at the expense of the remaining lenders in their group by engaging in a so-called “liability-management transaction.” This term evokes images of rival factions of corporate lenders engaging in physical combat. Although these hyper-technical restructurings certainly fall short of the barbarity the label suggests, the reality is that lenders participating in the so-called violence can siphon hundreds of millions of dollars away from nonparticipating lenders and …

Basic Bankruptcy Training For General Tax Practitioners, Walter E. Afield, Robb Longman, Alexander E. Schmidt

Faculty Publications By Year

No abstract provided.

The Small Business Prepack: How Subchapter V Paves The Way For Bankruptcy’S Fastest Cases, Christopher D. Hampson, Jeffrey A. Katz

UF Law Faculty Publications

America has long styled itself as a place where entrepreneurs can dream big and—if things go well—make it big too. But when small businesses fail, does the American bankruptcy system provide a real opportunity to preserve value and try again? For decades, bankruptcy professionals, judges, and lawmakers have tried various approaches to small business bankruptcies, none of which seemed to work particularly well. But in 2019, Congress passed the Small Business Reorganization Act (the “SBRA”), one of the most significant amendments to the Bankruptcy Code in a generation. As practitioners, scholars, and judges work out the contours of the rules, …

Pertanggungjawaban Jaminan Perorangan (Personal Guarantee) Dalam Kepailitan: Studi Kasus Putusan Nomor 6/Pdt.Sus-Pailit/2020/Pn.Niaga.Jkt.Pst., Yasmin Ghaisani Sya'bina, Togi Marolop Pangaribuan

Lex Patrimonium

Agreement as a personal guarantee places oneself in a quite risky position. As regulated in Article 1820 of the Civil Code, a personal guarantee is obligated to pay off the debts of a debtor who fails to pay their debts. However, in carrying out the agreement, a personal guarantee is given a privilege based on Article 1831 of the Civil Code in the form of the right to demand execution of the principal’s beforehand. Furthermore, Article 1832 paragraph (1) of the Civil Code which regulates the relinquishment of personal guarantee’s privilege indicated the possibility of personal guarantee being …

Dei As Cultural Commitment In An Era Of Backlash, Christopher D. Hampson, Elise Bernlohr Maizel

UF Law Faculty Publications

In 2023, shortly after the U.S. Supreme Court ended affirmative action in college admissions in the companion cases Students for Fair Admissions Inc. v. President & Fellows of Harvard College and Students for Fair Admissions Inc. v. University of North Carolina (SFFA), conservative officials and activists began threatening (and taking) legal action against private law firms, arguing that their diversity, equity and inclusion (DEI) programs violated state and federal law. This development should matter to bankruptcy lawyers, both as citizens of our own law firms and as counsel to companies in financial distress. We hope that this rolling assault on …

Applicability Of Discharge Exceptions To Corporate Debtors In Subchapter V: A “Death Blow” To Rescuing Small Businesses, Robert J. Landry Iii

The Journal of Business, Entrepreneurship & the Law

On August 23, 2019, the Small Business Reorganization Act of 2019 (SBRA) was signed into law, adding a new subchapter to Chapter 11 for small business debtors, i.e. “Subchapter V”. The underlying driver for SBRA was a concern that while most Chapters 11 cases are small business debtors, most small business debtors face difficulty successfully reorganizing under Chapter 11. SBRA is intended to streamline Chapter 11 reorganization for small business debtors by making the process quicker and cheaper. However, SBRA arguably curtailed the scope of discharge when a plan is confirmed without the consent of the creditors for corporate small …

Sounds Of Silence: Codifying The Unimpaired Creditor’S Right To Post-Petition Interest At The Contract Rate, Matthew Killip

Brooklyn Journal of Corporate, Financial & Commercial Law

Capital markets, reliant on a framework of transactional predictability and legal surety, face a nuanced challenge arising from the U.S. Bankruptcy Code’s provisions for solvent debtors in Chapter 11 cases. This challenge is the precise methodology for calculating post-petition interest rates on claims of unimpaired, unsecured creditors—a calculation that hinges on whether to apply the contract, state law, or the federal judgment rate. Section 502(b)(2) of the Bankruptcy Code generally prohibits the accrual of interest after a bankruptcy filing. However, this ban is circumvented when the debtor is solvent—the so-called “solvent debtor exception.” This exception, stemming from pre-Bankruptcy Code practice, …

Johnson & Johnson’S Dance With Bad Faith: A Look At How Large Corporations Utilize The Bankruptcy Code To Avoid Liability From Mass Tort Claims, Amy West

Brooklyn Journal of Corporate, Financial & Commercial Law

Since Congress enacted the current Bankruptcy Code in 1978, large corporations have strategically used bankruptcy law to evade liability in mass tort claims. This Note examines three case studies illustrating such attempts. The first case involves Johnson & Johnson, which tried to use the so-called “Texas Two-Step” maneuver to circumvent liability for 38,000 pending talc-related lawsuits linked to injuries caused by its well-known Baby Powder. The second case is the Purdue Pharma bankruptcy. Purdue Pharma, the pharmaceutical manufacturer responsible for creating OxyContin, faces thousands of claims for strict liability, negligence, and failure to warn. The issue here is whether the …

Dol Fiduciary Rule 3.0 Strikeout, Base Knock, Or Home Run?, Antolin Reiber

DePaul Business & Commercial Law Journal

No abstract provided.

Money Is Morphing - Cryptocurrency Can Morph To Be An Environmentally And Financially Sustainable Alternative To Traditional Banking, Clovia Hamilton

DePaul Business & Commercial Law Journal

No abstract provided.

Survey Evidence In Trademark Actions, Ioana Vasiu And Lucian Vasiu

DePaul Business & Commercial Law Journal

No abstract provided.

Corporate Governance And Compelled Speech: Do State-Imposed Board Diversity Mandates Violate Free Speech?, Salar Ghahramani

DePaul Business & Commercial Law Journal

No abstract provided.

The Real Persons Are The Corporations We Made Along The Way, Leonard Brahin

DePaul Business & Commercial Law Journal

No abstract provided.

Front Matter

DePaul Business & Commercial Law Journal

No abstract provided.

The Erosion Of Judicial Discretion: Why Congress And The Court Should Curb Restrictions For Bankruptcy Judges, Mason Spedding

BYU Law Review

This Note argues that reducing bankruptcy courts’ discretionary powers is a policy mistake because broad-sweeping legislation cannot adequately account for every circumstance presented by debtors. Bankruptcy is a unique field of law that requires unique rules; unlike a purely uniform bankruptcy system that is inherently over- and under-inclusive, a system of judiciously broad discretionary powers enables bankruptcy courts to find the optimal solutions to new issues on a case-by-case basis. Rather than restricting the discretionary powers of bankruptcy judges, Congress should enact a set of standards for judges to consider when evaluating individual cases. Under this system, judges would be …

Two Steps Too Far: New Limitations On The Use Of The Texas Two-Step To Resolve Mass Tort Liability In Bankruptcy, Samuel E. Bartz

University of Miami Business Law Review

This paper explores the mechanisms by which companies have utilized corporate restructuring through divisive mergers in conjunction with the available protections and tools of the United States Bankruptcy Code to resolve mass tort liability without placing the entirety of the business under bankruptcy. Popularized in Texas, a divisive merger is a mechanism by which an existing business entity divides itself into two new entities, allocating all pre-existing assets and liabilities to each as they see fit. Although intended to be a means by which to easily sell assets of a business, it has been more popularly used to resolve mass …

The Poor Man's Problem In Bankruptcy, Rylee Stanley

St. Mary's Law Journal

No abstract provided.

Bankruptcy Law, John T. Laney Iii, Siena Berrios Gaddy, Victoria Barbino Grantham

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 11 U.S.C. § 523(a)(2)(A)’s preclusion of discharge of debts obtained by fraud of a partner or agent; the Supreme Court’s effort to “bring some discipline” to 11 U.S.C. § 363(m) and the use of the term “jurisdictional;” abrogation of tribal sovereign immunity in 11 U.S.C. § 106(a); Chapter 11 plan modification under 11 U.S.C. § 1126 and Bankruptcy Rule 3019(a); the anti‑modification provision of 11 U.S.C. § 1322(b)(2) and its connection …

Ordinary Meaning As Last Resort: The Meaning Of "Undue Hardship" In Title Vii, James Phillips

BYU Law Review

Ordinary meaning reigns supreme in modern statutory interpretation. Yet that supremacy can cause an interpreter to miss specialized meaning. And the Supreme Court has never fully clarified when ordinary meaning must give way to specialized or technical meaning.

This Article attempts to provide doctrinal clarification as to when one should use ordinary as opposed to other meanings through putting the doctrinal pieces together in a full and coherent way. That doctrinal clarity leads to a methodological refinement: rather than the starting point, ordinary meaning is the ending point of statutory interpretation.

This Article applies this doctrine and methodology, as well …