Bankruptcy Law Commons^™

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

Articles

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 Survival Of Animal Care Organizations Impacted By The Covid-19 Pandemic In 2020, Juan Fernando Torrico

Environmental and Earth Law Journal (EELJ)

This note assessed how animal care organizations and the animals in their care were impacted, negatively and positively, by the coronavirus pandemic. Several animal care organizations in the United States–including animal shelters, rescues, sanctuaries, and zoos–were contacted directly, and invited to share their experiences from the COVID-19 pandemic in 2020. They provided valuable in-depth insight into how government shutdowns and social distancing impacted their facility; if any of the animals in their care tested positive for COVID-19; how the animals in their care were affected indirectly by COVID-19; if they sought and received any government assistance to keep them operational; …

Global Erie And Its Limits: Channeling Jurisdictional Competition For Procedure, Edward J. Janger

Faculty Scholarship

No abstract provided.

Changing The Student Loan Dischargeability Framework: How The Department Of Education Can Ease The Path For Borrowers In Bankruptcy, Pamela Foohey, Aaron S. Ament, Daniel A. Zibel

Articles

The United States' consumer bankruptcy system supposedly gives "honest but unfortunate" individuals "a new opportunity in life with a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt." Access to bankruptcy's discharge of debt is especially important in the wake of the COVID-19 pandemic, which has resulted in a once-in-a-century economic crisis that is projected to increase bankruptcy filings by people struggling to recover. Those who file bankruptcy will find a system that is already difficult to navigate and has long-recognized racial and gender disparities in access and outcomes.

Student loan borrowers will find a …

Financial Toxicity During Breast Cancer Treatment: A Qualitative Analysis To Inform Strategies For Mitigation, Laila A. Gharzai, Kerry A. Ryan, Lauren Szczygiel, Susan Goold, Grace Li Smith, Sarah T. Hawley, John A.E. Pottow, Reshma Jagsi

Articles

Financial toxicity from cancer treatment is a growing concern. Its impact on patients requires refining our understanding of this phenomenon. We sought to characterize patients' experiences of financial toxicity in the context of an established framework to identify knowledge gaps and strategies for mitigation. Semistructured interviews with patients with breast cancer who received financial aid from a philanthropic organization during treatment were conducted from February to May 2020. Interviews were transcribed and coded until thematic saturation was reached, and findings were contextualized within an existing financial toxicity framework. Thirty-two patients were interviewed, of whom 58% were non-Hispanic White. The mean …

Retiring Life Tenure: On Term Limits And Regular Appointments At The Supreme Court, Tyler Cooper, Amanda Dworkin, Dylan Hosmer-Quint, Amanda Pescovitz

Cardozo Law Review

No abstract provided.

Implementing An Insolvency Framework For Micro And Small Firms, Aurelio Gurrea-Martinez

Research Collection Yong Pung How School Of Law

Micro-, small-, and medium-sized enterprises (MSMEs) represent the vast majority of businesses in most countries around the world. Despite the economic relevance of these firms, most insolvency jurisdictions do not provide adequate responses to MSMEs. Moreover, with a few exceptions, the academic literature on insolvency law has not traditionally focused on the treatment of MSMEs in insolvency. This article seeks to contribute to the debate by exploring the primary features and problems of MSMEs in insolvency as well as the weaknesses of the ordinary insolvency framework to deal with MSMEs. It also provides a general overview of the primary reforms …

To Stay Or Not To Stay? A Clash Of Arbitration And Insolvency Regimes, Darius Chan, Sidharrth B Rajagopal

Research Collection Yong Pung How School Of Law

In the wake of the global Coronavirus disease 2019 (COVID-19) pandemic, a rise in creditorinitiated winding-up proceedings is likely to be impending in coming years (See e.g., RCMA Asia Pte. Ltd. v. Sun Electric Power Pte. Ltd. [2020] SGHC 205). At the same time, geopolitical developments, such as the scale and ambition of Belt & Road Initiative projects, have raised questions over the issue of debt sustainability. Given the prevalence of arbitration clauses in modern international commercial and project agreements, the interplay and relationship between insolvency and dispute resolution, and especially arbitration, requires careful attention. While the intersections between the …

Bankruptcy, Taxes, And The Primacy Of Irs Refund Offsets: Copley V. United States, Michelle Lyon Drumbl

South Carolina Law Review

No abstract provided.

Bankruptcy, John T. Laney Iii, Victoria Barbarino Grantham

Mercer Law Review

This year’s Bankruptcy Law Article surveys include both notable cases and legislation that will have an impact on the practice of bankruptcy law in the United States Court of Appeals for the Eleventh Circuit. It will address one Supreme Court of the United States case argued in October 2020, which was decided early in 2021, and three Eleventh Circuit Court of Appeals cases decided in 2020. This Article will also include a follow up on the Small Business Reorganization Act of 2019 and a glimpse into the CARES Act, the most groundbreaking legislation of its kind, and its provisions that …

The Time Has Come For Disaggregated Sovereign Bankruptcy, Odette Lienau

Emory Bankruptcy Developments Journal

With expanding global vaccinations and the potential end of the COVID-19 pandemic in sight, who among us has not succumbed to daydreams of post-crisis ‘normal’ life? Still—and setting aside for now the certain obstacles on any road to public and economic health—we should not be too sanguine about the degree to which the eventual recovery will be even, including across countries. By now, the images of economic dislocation resulting from the pandemic, including empty tourist beaches, deserted town centers, and closed manufacturing plants, have become commonplace. In certain regions and countries, this dislocation and its after-effects may prove long-lasting, putting …

Government Activism In Bankruptcy, Jared A. Ellias, George Triantis

Emory Bankruptcy Developments Journal

It is widely recognized that bankruptcy law can stymie regulatory enforcement and present challenges for governments when regulated businesses file for Chapter 11. It is less-widely understood that bankruptcy law can present governments with opportunities to advance policy goals if they are willing to adopt tactics traditionally associated with activist investors, a strategy we call “government bankruptcy activism.” The bankruptcy filings by Chrysler and General Motors in 2009 are a famous example: the government of the United States used the bankruptcy process to help both auto manufacturers resolve their financial distress while promoting the policy objectives of protecting union workers …

Bankruptcy Shopping: Domestic Venue Races And Global Forum Wars, Anthony J. Casey, Joshua C. Macey

Emory Bankruptcy Developments Journal

This Article proposes reforms to bankruptcy law’s venue rules. These reforms would expand venue choice, reduce opportunistic venue shopping, and account for the rise of global forum shopping. To date, the leading proposals to reform venue selection rules for bankruptcy cases have ignored simpler alternatives that can reduce opportunistic misbehavior while preserving beneficial choice. Moreover, those proposals have focused exclusively on restricting a debtor’s choice among venues within the United States while ignoring the increasing availability and convenience of foreign courts as forums for distressed corporate debtors seeking to initiate insolvency proceedings. In this way, the proposals on the table …

Chapter 11 Under Duress, Jay Lawrence Westbrook

Emory Bankruptcy Developments Journal

In this Article, the Business Bankruptcy Project (BBP) reports data from an empirical study of two samples of chapter 11 bankruptcies in the federal courts in Wilmington and Manhattan, two districts notably important in modern bankruptcy practice. While our study includes a number of interesting and important facts about the chapter 11 process in 2014 and 2018, this brief interim report centers around the loss of value arising from control by pre-bankruptcy lenders and the implications that arise from that fact. Building on other recent studies, it highlights the fact that a control transaction in many chapter 11 cases has …

A Path Forward For The Postal Service, Laura N. Coordes

Emory Bankruptcy Developments Journal

What is the United States Postal Service (USPS)? The entity’s future, financial and otherwise, is wrapped up in the answer to this fundamental, yet surprisingly complicated, question. The postal service in the United States began as a part of the federal government, but over the years, Congress has altered its structure. Today’s USPS is an entity situated somewhere between a public, governmental agency and a private business. It has attributes resembling both, and while most observers agree that it is becoming more “privatized,” it is still subject to a significant number of laws and regulations that do not apply to …

The Dischargeability Of Environmental Claims In Bankruptcy: Resolution To Diametrically Opposed Goals, Jason V. Stitt

Journal of Natural Resources & Environmental Law

No abstract provided.

Telling The Story On Your Timesheets: A Fee Examiner's Tips For Creditors' Lawyers And Bankruptcy Estate Professionals, Nancy B. Rapoport

Brooklyn Journal of Corporate, Financial & Commercial Law

This short (approx. 5,000 words) essay, which forms the basis of a keynote address to the Federal Bar Association that I’m doing next month, discusses how much of a lawyer’s embedded assumptions and cognitive errors can come across in something as simple as a time entry on a bill. So much can be revealed about how a lawyer views himself or herself in society and about the lawyer’s relationship with the client that it’s worth examining what we can find when we look at legal bills. One note, though: my writing style is informal and distinctive in that regard (especially …

A Rejection Of Absolutist Duties As A Barrier To Creditor Protection: Facilitating Directorial Decisivness Surrounding Insolvency Through The Business Judgment Rule, Philip Gavin

Brooklyn Journal of Corporate, Financial & Commercial Law

This Article draws attention to the difficulties that directors may face when seeking to discharge their duties as a corporation approaches insolvency, in particular when directors must discern the point at which a corporation has become insolvent. It argues that discretion allowed to directors by the business judgment rule will be crucial to overcoming these difficulties. To do this, this article examines the nature of duties owed by directors both before and after insolvency, and accepts the stance taken by Delaware courts in recent years towards an expansive understanding of a corporation’s interests upon insolvency. It then considers unresolved issues …

Considering Environmental Impact Under Uncommon Personal Circumstances Carey V. Commonwealth And The Storage Tank Act, Catherine M. Hillin

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Appraising Problems, Not Stuff, Chad J. Pomeroy

St. Mary's Law Journal

Abstract forthcoming.