Bankruptcy Law Commons^™

Rejection Hurts: Trademark Licenses And The Bankruptcy Code, Amanda E. James

Vanderbilt Law Review

Section 365 of the Bankruptcy Code empowers debtors to reject burdensome executory contracts. From 1988 until May 2019, the effect of such a rejection on trademark licenses was unclear. The Supreme Court’s recent decision in Mission Product Holdings, Inc. v. Tempnology, LLC settled the matter definitively: all rejections under § 365(g) operate exactly as a breach would outside the bankruptcy context. As such, if the trademark license would allow the licensee to continue using the mark after a breach, the licensee may continue to use the mark after a rejection. While this decision comports with the language of the Code …

Global Guide: Measures Adopted To Support Businesses Through The Covid-19 Crisis: Singapore, Aurelio Gurrea-Martinez

Research Collection Yong Pung How School Of Law

After the outbreak of the coronavirus (COVID-19), the Singapore Government responded with a quick and comprehensive package of legal, economic and financial measures that sought to put the economy into hibernation and avoid the destruction of jobs and viable businesses, at least while companies were unable to generate revenues and cash-flows due to a variety of factors, including travel restrictions and lockdowns imposed in many countries around the world. To that end, the Government spent SGD$97.3 billion (that is, around 20% of the country’s GDP) to support businesses, households and employees. Most of this financial support was given in the …

Financing Failure: Bankruptcy Lending, Credit Market Conditions, And The Financial Crisis, Frederick Tung

Faculty Scholarship

When contemplating Chapter 11, firms often need to seek financing for their continuing operations in bankruptcy. Because such financing would otherwise be hard to find, the Bankruptcy Code authorizes debtors to offer sweeteners to debtor-in-possession (DIP) lenders. These inducements can be effective in attracting financing, but because they are thought to come at the expense of other stakeholders, the Code permits these inducements only if no less generous a package would have been sufficient to obtain the loan.

Anecdotal evidence suggests that the use of certain controversial inducements — I focus on roll-ups and milestones — skyrocketed in recent years, …

Law In The Time Of Covid-19, Katharina Pistor

Faculty Books

The COVID-19 crisis has ended and upended lives around the globe. In addition to killing over 160,000 people, more than 35,000 in the United States alone, its secondary effects have been as devastating. These secondary effects pose fundamental challenges to the rules that govern our social, political, and economic lives. These rules are the domain of lawyers. Law in the Time of COVID-19 is the product of a joint effort by members of the faculty of Columbia Law School and several law professors from other schools.

This volume offers guidance for thinking about some the most pressing legal issues the …

Express Preclusion Of The Federal Arbitration Act For All Bankruptcy-Related Matters, John R. Hardison

St. John's Law Review

(Excerpt)

This Article sets forth a more solid justification for bankruptcy courts to refuse to order arbitration of any matter related to and affecting a bankruptcy case through express preclusion. First, this Article describes the historical development of the Supreme Court’s holdings on preclusion of the FAA in general and on the courts of appeals’ current formulation of a bankruptcy exception to the FAA. Next, this Article discusses the statutory, historical, and policy-based support for reading the bankruptcy jurisdictional provisions as creating an express exception to the FAA, or alternatively as supporting an implied exception to the FAA. As discussed, …

City Of Chicago V. Fulton: Brief Of Amici Curiae Professors John A. E. Pottow And Jay Lawrence Westbrook In Support Of Respondents, John A.E. Pottow

Appellate Briefs

Amicus Pottow is the John Philip Dawson Collegiate Professor of Law at the University of Michigan Law School. He has spent decades studying the bankruptcy system and has briefed and argued cases before this Court before on the subject of bankruptcy law. Amicus Westbrook has also spent decades studying the bankruptcy system and has briefed cases before this Court. Amici are the primary co-authors of one of the leading textbooks on debtor creditor law. Amici are members of the American College of Bankruptcy and International Insolvency Institute and have served on the U.S. delegation to the United Nations Commission on …

Event Program, Emory Bankruptcy Developments Journal

Emory Bankruptcy Developments Journal Symposia & Workshops

Seventeenth Annual Emory Bankruptcy Developments Journal Symposium

February 20, 2020
Tull Auditorium
Emory University School of Law
Atlanta, GA

Dankruptcy: When The Green Runs Out, Marijuana Debtors Have Few Options, Jorge J. Rodriguez

Arkansas Law Review

The legalized marijuana industry is lucrative but surrounded with uncertainties. The divergence between state and federal law has pushed this industry into a state of limbo. Furthermore, at the federal level, the lack of enforcing the prohibition has only exacerbated the uncertainty. Historically, the federal government has taken a very relaxed approach and allowed marijuana businesses to operate with minimal interference. As a result, there is a thriving legalized marijuana industry operating throughout the majority of the United States. However, there are many obstacles which plague and threaten the future of this relatively young industry. Of particular importance, and the …

Countering Misinformation In The Health Care System: The Case For Stricter Regulations Within Health Insurance Provider Directories, Jaclyn Kleban

Cardozo Law Review

No abstract provided.

Obduskey V. Mccarthey & Holthus Llp: Declining To Distinguish Between Judicial And Non-Judicial Foreclosure In Furtherance Of The Fdcpa’S Mission, Moshe Y. Gugenheim

Proxy

No abstract provided.

Pleading Fraudulent Conveyances: Federal Vs. New York State Requirements, Tara Guarino

Bankruptcy Research Library

(Excerpt)

Fraudulent conveyances are transfers of a debtor’s property made to defraud, burden, and unfairly place the property out of reach of the creditor. Such transfers are illegal and therefore prohibited under both federal and New York State law. Federal fraudulent conveyance law, the United States Bankruptcy Code (the “Bankruptcy Code”), recognizes two different types of fraudulent conveyances: intentional (“actual”) fraudulent transfers and constructive fraudulent transfers. Each of these fraudulent transfers require different pleading standards. These two types of fraud are recognized in New York, as well. If these fraudulent conveyances can be proven, both federal and state law allow …

A District Court May Not Enjoin Third-Party Claims Against Insurers In A Securities-Fraud Receivership Without Alternative Compensation Scheme, Justin Henderson

Bankruptcy Research Library

(Excerpt)

Within its equitable power, a district court may place the assets of a defendant into receivership and appoint a receiver to protect a plaintiff’s interest in property where the rights over that property are disputed. In general, the purpose of this equity receivership is to marshal assets, preserve value, equitably distribute to creditors, and, either reorganize, or orderly liquidate. This power is an extraordinary remedy only justified by extreme situations, such as where there is a high probability that fraudulent conduct has occurred or will occur to frustrate the claim, or when there is a threat that the disputed …

Exempt Assets May Not Be Considered When Determining If Student Loan Should Be Discharged, Kayla Mistretta

Bankruptcy Research Library

(Excerpt)

Student loans are presumptively non-dischargeable under title 11 of the United States Code (the “Bankruptcy Code”). The Bankruptcy Code, however, provides that a debtor may rebut the presumption and be discharged from student loans if the debtor can prove that excepting the debt from discharge would cause “undue hardship” on the debtor or the debtor’s dependents. Proving undue hardship is a “formidable task” for a debtor, but not an impossible one. The Bankruptcy Code does not define undue hardship and does not provide bankruptcy courts with any guidance on how to evaluate it. Accordingly, Congress has given bankruptcy courts …

Bankruptcy Courts Are Largely Unavailable To Cannabis-Related Debtors But Not Off-Limits, Cameron Purcell

Bankruptcy Research Library

(Excerpt)

Although title 11 of the United States Code (the “Bankruptcy Code”) does not explicitly prohibit cannabis businesses from filing for bankruptcy, there are many hurdles that continue to preclude cannabis industry participants from obtaining bankruptcy relief. Chapter 11 of the Bankruptcy Code provides a debtor with an opportunity to reorganize its financial affairs in order to continue to operate while providing the fair and equitable distribution among creditors. When the continuation of the debtor’s business is not viable, chapter 7 of the Bankruptcy Code provides a court-supervised procedure for liquidating the debtor’s assets to pay creditors. Under both forms …

Pension Trusts Should Not Be Considered Business Trusts For The Purpose Of § 109 Of The Bankruptcy Code And Thus Not Eligible To Be A Debtor Under The Bankruptcy Code, Danielle Ullo

Bankruptcy Research Library

(Excerpt)

Qualifying as a debtor is the first eligibility requirement for bankruptcy protection under the United States Bankruptcy Code (the “Code”). Failure to satisfy the requirements to be a qualifying debtor forecloses an entity from obtaining bankruptcy relief. Thus, it is crucial that qualifying debtor categories are defined and delineated, particularly for business entities for whom debtor status is not always so clear.

Section 109 of the Code includes “business trust[s]” as a party entitled to bankruptcy relief but excludes other trusts from that definition. While the Code is clear to exclude ordinary trusts from eligibility to be a debtor, …

The Enforceability Of Arbitration Agreements In Bankruptcy Throughout The United States, Laila Rizk

Bankruptcy Research Library

(Excerpt)

Bankruptcy courts have historically been opposed to the use of arbitration in settling controversies in which a trustee was involved unless both parties agreed. The distrust of the bankruptcy system stemmed from a string of Supreme Court decisions that refused to compel arbitration. Following the introduction of the Federal Arbitration Act in 1925, there has been a slow move towards embracing arbitration by the bankruptcy courts in non-core matters. However, there has been pushback by the bankruptcy courts in enforcing arbitration clauses in core matters that are fundamental to a bankruptcy case.

In determining whether to enforce an arbitration …

A No-Contest Discharge For Uncollectible Student Loans, Brook E. Gotberg, Matthew Bruckner, Dalie Jimenez, Chrystin Ondersma

Faculty Publications

Over forty-four million Americans owe more than $1.6 trillion in student loan debt. This debt is nearly impossible to discharge in bankruptcy. Attempting to do so may require costly and contentious litigation with the Department of Education. And because the Department typically fights every case, even initial success can be followed by years of appeals. As a result, few student loan borrowers attempt to discharge their student loan debt in bankruptcy.

In this Article, we call on the Department of Education to develop a set of ten easily ascertainable and verifiable circumstances in which it will not contest a debtor’s …

Using General Counsel To Set The Tone For Work In Large Chapter 11 Cases, Nancy B. Rapoport

Scholarly Works

This Essay suggests that one way for the general counsel to help bankruptcy professionals make better staffing and budget decisions is to communicate her values more clearly to those professionals at the beginning of the engagement. In her role as the chief legal officer, the general counsel needs to let the bankruptcy professionals in on her thought processes. How does she watch over her own attorneys' decisions in other types of cases? What expenses does she consider reasonable? If she takes an active role in monitoring her bankruptcy professionals' work, her values (assuming that they're good values) will contribute to …

Client-Focused Management Of Expectations For Legal Fees In Large Chapter 11 Cases, Nancy B. Rapoport

Scholarly Works

Large chapter 11 cases can have fees that run into the hundreds of millions of dollars. That's one of the reasons that, in 2013, the Executive Office of the United States Trustee promulgated additional guidelines that affect legal fees in large chapter 11 cases. Bankruptcy courts have been appointing fee examiners and fee committees in large cases to aid the courts in their duty to ensure that the fees and expenses of estate-paid professionals are reasonable. I've been one of those people charged with helping bankruptcy courts review fees. As such, I've seen first-hand what happens when the professionals involved …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents