Bankruptcy Law Commons^™

Corporate Governance And Gender Equality: A Study Of Comply-Or-Explain Disclosure Regulation, Aaron A. Dhir, Sarah Kaplan, Maria Arabella Robles

Seattle University Law Review

In 2020, the Nasdaq Stock Market filed a proposal with the U.S. Securities and Exchange Commission seeking permission to adopt a board diversity-related disclosure requirement for its listed companies. In 2021, the SEC approved the proposal, thus entrenching Nasdaq’s position as the most significant stock exchange to date to mandate listing rules that reflect the intention of diversifying corporate boardrooms. Nasdaq’s movement into the diversity space is not the first attempt to address homogeneous boards in the U.S. In 2009, the SEC adopted a rule requiring publicly traded firms to report on whether they consider diversity in identifying director nominees. …

Judicial Ethics And The Eradication Of Racism, Dontay Proctor-Mills

Seattle University Law Review

In 2020, the Washington Supreme Court entrusted the legal community with working to eradicate racism from its legal system. Soon after, Washington’s Commission on Judicial Conduct (hereinafter the Commission) received a complaint about a bus ad for North Seattle College featuring King County Superior Court Judge David Keenan. Along with a photo of Judge Keenan’s face, the ad included the following language: “A Superior Court Judge, David Keenan got into law in part to advocate for marginalized communities. David’s changing the world. He started at North.” The Commission admonished Judge Keenan for violating the Code of Judicial Conduct, in part …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Why Corporate Boards Should Include Lgbtq+ People, Jeremy Mcclane, Darren Rosenblum

Seattle University Law Review

Corporate boardrooms sit at the heart of most of society’s most consequential decisions but fall far short of the diversity of our society. The current movement toward board diversification aims to remedy the underrepresentation of marginalized groups on corporate boards. More recently, some efforts have included LGBTQ+ people, even though the basis for their inclusion on corporate boards remains largely unstated. This Article examines both the normative and instrumental bases for LGBTQ+ inclusion in board diversity initiatives, articulating unspoken assumptions and linking LGBTQ+ people to the broader inclusion effort. In so doing, it begins to surface the unique issues LGBTQ+ …

Defi: Shadow Banking 2.0?, Hilary J. Allen

Scholarly Articles in Law Reviews & Journals

The growth of so-called “shadow banking” was a significant contributor to the financial crisis of 2008, which had huge social costs that we still grapple with today. Our financial regulatory system still hasn’t fully figured out how to address the risks of the derivatives, securitizations, and money market mutual funds that comprised Shadow Banking 1.0, but we’re already facing the prospect o fShadow Banking 2.0in the form of decentralized finance, or “DeFi.” DeFi’s proponents speak of a future where sending money is as easy as sending a photograph–but money is not the same as a photograph. The stakes are much …

Introductory Remarks, Ethan Bordman, Ira S. Dizengoff, Sophie Dizengoff

Cardozo Arts & Entertainment Law Journal

The article discusses the legal implications and challenges surrounding college athletes' rights to profit from their name, image, and likeness (NIL), following the NCAA's 2021 decision to lift its ban on athletes cashing in on their fame. The symposium explores the evolving legal landscape, including regulatory frameworks, equity issues, and the role of collectives, highlighting the need for clearer guidelines to address the complexities arising from this change.

Sales Free And Clear Of An Intellectual Property Licensee's Interests In Bankruptcy -- Looking To In Re Tempnology For Guidance, Summer Chandler

Journal Articles

Uncertainty surrounds many issues that exist at the intersection of bankruptcy law and intellectual property law. Section 363(f) of the Bankruptcy Code permits the debtor to sell assets free of a third party’s interest in such assets, provided one or more preconditions is satisfied. When a debtor rejects a license agreement pertaining to the debtor’s intellectual property, however, § 365(n) of the Bankruptcy Code allows the licensee to choose to retain its rights to use the intellectual property that was the subject of the rejected license agreement. One unsettled question is whether a debtor may sell intellectual property pursuant to …

Sovereign Immunity Tests Bankruptcy’S Least Contested Axioms, Deborah L. Thorne, Luke L. Sperduto

Emory Bankruptcy Developments Journal

Section 106 of the Bankruptcy Code expressly abrogates the sovereign immunity of governmental units with respect to fifty-nine other provisions of the Code. There are currently two distinct issues splitting circuit courts over the meaning of this provision. First, does section 106 waive the sovereign immunity of the Internal Revenue Service in avoidance actions brought against it by a bankruptcy trustee under section 544(b)? Second, are Native American Indian Tribes “governmental units” within the meaning of section 101(27), such that their sovereign immunity is abrogated to the extent set forth in section 106? Invoking conventional canons of statutory construction, this …

Alliance Politics In Corporate Debt Restructurings, Diane Lourdes Dick

Emory Bankruptcy Developments Journal

Alliance politics have always been a complicating factor in corporate restructurings. Negotiations between and among large groups of corporate stakeholders naturally require that parties expend time and resources on building coalitions, overcoming holdouts, and fleshing out their collective action. But recent trends suggest that alliance politics—rather than sound financial and economic decisions—may be driving restructuring outcomes, introducing new risks and inefficiencies in the financial markets. For instance, restructuring proponents increasingly use wedge strategies and divide-and-conquer tactics to exacerbate the coordination problems that lenders in large syndicates already face, giving rise to hostile restructurings that have the potential to introduce dangerous …

Bankruptcy In The Golden Years: The Case For Increasing Exemptions For Elderly Americans, Danny Fitzpatrick

Emory Bankruptcy Developments Journal

This Comment analyzes 11 U.S.C. § 522(d) and several state exemption statutes for their success at providing elderly debtors sufficient exemptions to maintain their quality of life after filing for bankruptcy. Exemptions are assets that are excluded from an individual debtor’s estate upon filing for bankruptcy and that serve as protection against creditors stripping the debtor of all pre-petition property interests. State and federal exemptions vary dramatically, with some states carving out additional exemptions specifically for elderly debtors. For example, states like Massachusetts and Maine recognize additional exemptions for elderly debtors with regards to their homesteads.

Bankruptcy filing …

Acceptance Remarks, David R. Jones

Emory Bankruptcy Developments Journal

No abstract provided.

Big Banks & Small Consequences In Chapter 13, Alexandra P.E. Sickler

Emory Bankruptcy Developments Journal

Mortgage creditors struggle to properly service mortgages in chapter 13 cases, as evidenced by numerous cases describing violations of Bankruptcy Rule 3002.1. The consumer bankruptcy system, however, is not calibrated to compel systemwide compliance from these large, institutional repeat actors. This Essay argues that the Consumer Financial Protection Bureau (CFPB) is well-suited to support the consumer bankruptcy system by exercising its monitoring and enforcement powers to promote, and even compel, mortgage creditor compliance in chapter 13 cases.

Status Check: Should The Federal Tax Status Of A Disregarded Debtor Be Property Of The Estate?, J. Benjamin Ward

Emory Bankruptcy Developments Journal

This Comment focuses on whether the tax status of a debtor constitutes “property” of the debtor’s estate under 11 U.S.C. § 541(a). The answer to this question ultimately determines whether a bankruptcy trustee has the power to avoid a “check-the-box” tax status change made by the owner of a debtor entity from a “pass-through” to a separately taxed C Corporation. This issue normally arises when the parent corporation or individual owner of a debtor subsidiary corporation or disregarded entity (to the individual owner) elects to transform the status of the debtor by “checking the box” on the proper federal tax …

“Buy Now, Pay Later: No Fees. No Credit Check.”, Elaine Lee

Seattle Journal of Technology, Environmental, & Innovation Law

Afterpay and Affirm, are financial technology (“fintech”) platforms that allow consumers to split their low-cost purchases into four installment payments–with seemingly no interest, fees, or hard credit inquiries. Similar to retailer fees on credit card transactions, these companies generate most of their profits as the intermediary between consumers and merchants. By flaunting celebrities like A$AP Rocky and Keke Palmer, the loan products are heavily advertised as the “cool” alternative to traditional credit cards and are particularly well-received among Millennials and Generation Z (“Gen Z”) consumers. Consequently, consumer advocates are duly concerned that lenders irresponsibly extend credit to a young generation, …

A Claims Agent Can Only Profit From The Fees The Clerk Of Court Can Charge, Peter Berkanish

Bankruptcy Research Library

(Excerpt)

In the Southern District of New York, the retention of claims agents is governed by the judicial procedure set forth in section 156(c) of title 28 of the United States Code, for cases under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) that involve 250 or more creditors and equity holders. When a claims agent is retained under section 156(c), the claims agent is acting in the same capacity as the clerk and the services are “limited in scope to those duties that would be performed by a Clerk of Court with respect to …

The Intersection Of The Bankruptcy Courts And Ferc, Amanda Gazzo

Bankruptcy Research Library

(Excerpt)

In the past, the bankruptcy courts and the Federal Energy Regulatory Commission (“FERC”) have been involved in a power struggle with one another. Congress has granted bankruptcy courts exclusive authority to allow debtors to reject executory contracts in chapter 11 reorganization cases. Additionally, Congress has granted FERC authority to govern over utility entities’ filed-rates, which are sometimes contained in executory contracts. It is in this intersection, regarding executory contracts containing filed-rates, where the power struggle between the two exists.

An executory contract is a contract where both parties still have material obligations to perform under the contract. Filed-rates may …

Bad Faith Dismissals In Chapter 7, Myah Drouin

Bankruptcy Research Library

(Excerpt)

Title 11 of the United States Code (the “Bankruptcy Code”) provides a fresh start to the “honest but unfortunate debtor.” Chapter 7 therefore permits a debtor to “discharge their outstanding debts in exchange for liquidating their nonexempt assets and distributing them to their creditors.” Dismissals in chapter 7 are governed by section 707 of the Bankruptcy Code. Section 707(a) governs all chapters of bankruptcy filings and applies when adequate “cause” is shown.

There is currently a circuit split regarding whether a debtor’s lack of good faith constitutes cause for dismissal under section 707(a). Under section 707(a), a case may …

The Dischargeability Of Money Judgements Versus Property Interests In Arbitration Awards For Domestic Contributions In The Context Of Unmarried Couples, Gabriella Hansen

Bankruptcy Research Library

(Excerpt)

A debt which arises prior to the filing of the petition for discharge in bankruptcy is dischargeable unless it can be categorized as one of the statutory exceptions to discharge listed in section 523(a) of title 11 of the United States Code (the “Bankruptcy Code”). Section 523(a)(5) of the Bankruptcy Code prohibits the discharge of awards of domestic support due to a debtor’s spouse, former spouse, or child. Accordingly, maintenance, alimony, and child support, often awarded in divorce proceedings, fall under the federal bankruptcy law statutory exceptions to discharge for domestic support obligations.

When an unmarried couple separates and …

Exceptions To The General Rule That The Automatic Stay Under Bankruptcy Code Section 362(A) Does Not Apply To Non-Debtors, Annmarie Gruick

Bankruptcy Research Library

(Excerpt)

Upon the filing of a bankruptcy petition, the automatic stay takes effect. “The automatic stay is one of the fundamental debtor protections provided by the bankruptcy laws. It gives the debtor a breathing spell from its creditors. It stops all collection efforts, all harassment, and all foreclosure actions. It permits the debtor to attempt a repayment or reorganization plan, or simply to be relieved of the financial pressures that drove him [or her] into bankruptcy.”

Section 362(a) enumerates eight (8) actions and activities from which the debtor is protected—“it does not protect separate legal entities, such as corporate directors, …

U.S. Trustee Fee Increase That Is Not Applicable Uniformly Violates The U.S. Constitution, Malorie Ruggeri

Bankruptcy Research Library

(Excerpt)

Article I, Section 8, Clause 4 of the United States Constitution contains the “Bankruptcy Clause,” which vests Congress with the power to establish “uniform Laws on the subject of Bankruptcies throughout the United States.” The clause’s requirement that the bankruptcy laws be “uniform” is not a strictly construed requirement as Congress reserves the right to draft legislation depending on different regional issues that arise within the bankruptcy system.

Congress created the United States Trustee Program (USTP) to, among other things, oversee the administration of bankruptcy cases and promote the integrity and efficiency of bankruptcy system for the benefit of …