It’s always gratifying to learn that bankruptcy legends read this blog.  Lynn LoPucki is one of those people. 

Last night I opened an email I received from Professor LoPucki letting me know that he and my (not-so-old) old law school professor, Doug Baird, would be duking it out at the University of Chicago Faculty Law Blog over issues raised in Professor LoPucki’s recent paper (written with empiricist Joseph W. Doherty) entitled Bankruptcy Fire Sales, 106 Mich. L.R. 1 (2007).  The article was posted on SSRN last April, accompanied by the following abstract:

For more than two decades, scholars working from an economic perspective have criticized the bankruptcy reorganization process and sought to replace it with market mechanisms. In 2002, Professors Douglas G. Baird and Robert K. Rasmussen asserted in The End of Bankruptcy (pdf), an article published in the Stanford Law Review, that improvements in the market for large, public companies had rendered reorganization obsolete.  Going concern value could be captured through sale.

This article reports the results of an empirical study comparing the recoveries in bankruptcy sales of large public companies in the period 2000-2004 with the recoveries in bankruptcy reorganizations during the same period.  We find that, controlling for company values reported at case commencement, pre-filing operating profits, and post-filing operating profits, the recoveries in reorganization cases are more than double the recoveries from going concern sales.  We attribute the low recoveries in sale cases to continuing market illiquidity and the corruption of the bankruptcy process by competition among bankruptcy courts for large, public company cases.

We also find that bankruptcy recoveries are higher in years when merger and acquisition activity is higher for reasons other than high stock prices.  Lastly, we find that bankruptcy recoveries are higher when debt capacity in the debtor’s industry is lower – the opposite effect predicted by Professors Andrei Shleifer & Robert W. Vishny in their landmark article in 1992 [entitled Liquidation Values and Debt Capacity: A Market Equilibrium Approach, 47 J. Fin. 1343 (1992)].

This "H2H"–as the U of C Law Blog calls the "head to head" grudge match–is sure to be a classic, as Professors LoPucki and Baird have been sparring over bankruptcy’s most fundamental questions since 1990, when Professor LoPucki first challenged Professor Baird’s "faith" in the free market’s ability to properly value a company’s worth in chapter 11.  See LoPucki, Bargaining Over Equity’s Share in the Bankruptcy Reorganization of Large, Publicly Held Companies, 139 U. Penn. L. Rev. 125 (1990).  Their ongoing debate remains central to bankruptcy jurisprudence, as noted in this last post, with recent opinions by the Seventh Circuit’s Judge Cudahy (while sitting by designation as a Third Circuit judge in VFB LLC v. Campbell Soup Co.) and Judge James M. Peck (in the Iridium bankruptcy) suggesting that judges, by placing a heavy burden of proving market folly on the party challenging the market’s indication of value, are beginning to share Professor Baird’s faith in free market valuations.

Professor LoPucki also took issue early on with the idea that chapter 11 should be eliminated and companies forced instead to liquidate expeditiously in chapter 7, an idea he attributes first to a 1986 article by Professor Baird (and Professor Baird’s former writing partner, Thomas H. Jackson).  See LoPucki, Strange Visions in a Strange World:  A Reply to Professor Bradley and Rosenzweig, 91 Mich L. Rev. 79 n.2 (1992); and LoPucki & Whitford, Corporate Governance in the Bankruptcy Reorganization of Large, Publicly Held Companies, 141 Univ. Pa. L. Rev. 669 (1993).

Professor LoPucki stepped up the rhetoric in the debate in 1994, paying Professor Baird this back-handed compliment at an interdisciplinary conference at Wash. U. Law School:  "Without the unrealistic work done by Baird and Jackson during the 1980s, bankruptcy scholarship might not have gone beyond the relatively shallow analysis produced by doctrinalism in the 1970s."  See LoPucki, Reorganization Realities, Methodological Realities, and the Paradigm Dominance Game, 72 Wash. U. L. Q. 1307, 1312 (1994).

Continue Reading LoPucki v. Baird Redux: Bankruptcy Titans Blog “Head to Head” Over Chapter 11’s Utility or Futility

As every blogger will agree, "thank goodness for guest bloggers!" (especially with my wife now 37 weeks and counting–laboriously so–with twins).

Today’s guest blog is from my colleague at The Coleman Law Firm, Elizabeth E. Richert, who has been at my side–for better or for worse–since her graduation from Duke Law School in 2001.

If you’re wondering how I had the time to blog, it’s in large measure because Elizabeth does a lot of the spade work for me.  If you’re also wondering why I’m not blogging as regularly, well, Elizabeth’s starting to do that for me too.   Unfortunately, I don’t think she does diapers (but see training video here).

So thanks Elizabeth for stepping up to the plate, and congratulations on your first of what I hope will be many more excellent posts!

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Continue Reading Judge Peck Rules in Iridium’s Bankruptcy That Stock Market Valuations Are No “Fool’s Game”

Last year, then "Junior Scholar" — and now Associate Professor of Law at Georgetown — Adam Levitin (who is also a long-time reader of this blog!) wrote an excellent piece entitled Finding Nemo: Rediscovering the Virtues of Negotiability in the Wake of Enron, 2007 Colum. Bus. L. Rev. 83 (WL) / (pdf).  In it, he strongly criticized a decision by Bankruptcy Judge Arthur Gonzalez denying a good faith bankruptcy claim purchaser’s motion to dismiss the Enron estate’s cause of action for equitable subordination based not on the purchaser’s own misconduct, but on the conduct of previous owners of the claims purchased, regardless of whether the conduct related to the claims themselves.  Enron Corp. v. Springfield Assocs., L.L.C. (In re Enron), 2005 WL 3873893 (Bankr. S.D.N.Y.  11/28/05) (pdf).  Professor Levitin sums up his critique of Judge Gonzalez’s ruling as follows (at pp. 90-91):

The problems in Enron speak to a fundamental commercial law question about choice of property transfer rules.  Enron was based on the commercial law principle of nemo dat quod non habet — you can only transfer what you have.  Nemo dat means that defenses travel with property transfers, so if bankruptcy claims would be subject to equitable subordination in the hands of a transferor, they should remain so in the hands of a transferee.

Nemo dat is the default rule for property transfers, but there is a competing commercial law paradigm: negotiability [as in Articles 2, 3, 7, and 8 of the UCC], and the law of real estate mortgages and titles.  The essential characteristic of negotiability is that only limited defenses travel with property, and thus a transferee can receive more than the transferor had–a property right free of certain defenses against its enforcement.  This means that there is some level of negotiability in any area of law with a good faith purchaser defense…. 

Historically, the law has differentiated between whether it adopts a nemo dat regime or a negotiability regime based on whether transactions are commercial or consumer….  [T]his article argues in favor of applying a negotiability regime to bankruptcy claims trading and proposes a general reconsideration of the rules governing the defenses that travel with a property transfer in commercial contexts.

Last January, District Court Judge Shira A. Scheindlin (herself no stranger to high-stakes bankruptcy controversies) granted the disheartened claims purchasers’ request for leave to file an interlocutory appeal of Judge Gonzalez’s ruling.  She also concurrently granted the request filed in connection with an analogous interlocutory ruling by Judge Gonzalez in Enron Corp. v. Avenue Special Situations Fund II, LP (In re Enron), 340 B.R. 180 (Bankr. S.D.N.Y. 2006) (pdf), in which he disallowed under Code section 502(d) the claim of an entity that purchased its claim from a party who had received a potentially avoidable prepetition transfer.  Judge Scheindlin granted these interlocutory appeals, she said, so that she could consider the following question that "although fairly simply stated, is complex and of first impression in this Circuit, and will have serious ramifications well beyond the parties involved in this particular appeal":

Whether equitable subordination under 510(c) and disallowance under 502(d) can be applied, as a matter of law, to claims held by a transferee to the same extent they would be applied to the claims if they were still held by the transferor based on alleged acts or omissions on the part of the transferor.

Last week, Judge Scheindlin was again the toast of distressed debt industry based on her lengthy decision vacating Judge Gonzalez’s decisions.  See Springfield Assocs., L.L.C. v. Enron Corp. (In re Enron), 2007 WL 2446498 (S.D.N.Y. 8/27/07) (pdf).  Though Judge Scheindlin never cites to Professor Levitin’s article, she does note — as does Professor Levitin — that the central distinction to be made in analyzing the question presented is whether the "well-established doctrine of nemo dat qui non habet" applies.  (Op. at 20-22.) 

To Judge Scheindlin, if the claims are being asserted by good faith purchasers of bankruptcy debt, then the doctrine doesn’t apply and the claims cannot be equitably subordinated under Code section 510(c) or disallowed (pending receipt of the avoidable transfer) under Code section 502(d).  Conversely, Judge Scheindlin ruled, if the transferee obtained the claim by way of "assignment," then the nemo dat doctrine applies, the "personal disabilities" of the claimant "travel with the claim," and the assignee’s claim is subject to possible subordination and disallowance.  (Op. at 29-44.)

Notably, Judge Scheindlin emphasizes, her decision is not based on policy concerns, and in particular the impact that an affirmance would surely have on depressing values in an already depressed market for distressed debt.  See, e.g., Levitin Article at 161-164 ("Developments in the Refco bankruptcy provide an early look at … how seriously Enron has affected the claims trading market….  As soon as rumors surfaced of BAWAG’s alleged misdeeds, all claims that had ever passed through BAWAG’s hands became radioactive before the other Refco creditors filed suit against BAWAG.  No one would purchase them for any price because of the fear of subordination or disallowance.")  Still, she seemed relieved to be able to note not only that "[t]he unnecessary breadth of the Bankruptcy Court’s decisions threatened to wreak havoc on the markets for distressed debt," but also that, with this decision, "[t]hat result has now been avoided."  (Op. at 52.)

What then was the basis for Judge Scheindlin’s reversal? 

© Steve Jakubowski 2007

Continue Reading Nemo Filleted: Judge Scheindlin Rules that Good Faith Purchasers of Claims in Bankruptcy Need No Longer Choke on the Personal Disabilities of the Claims Transferor

It’s been a while since I’ve created a new category, but this article by Marcia Coyle in the National Law Journal (including a quote from resident guru, Cathy Vance) about Congressional hypocrisy in having enacted draconian bankruptcy laws and then complaining when US Trustees enforce them made me wonder just what other pearls Congress has up its sleeve that we haven’t heard much about.  Turns out, a lot more than you’d think!  Here are a few bits of pending legislation I found interesting:

HR 430 — to rename the Bankruptcy Court in Brooklyn the "Conrad B. Duberstein US Bankruptcy Courthouse."  A slam dunk that was swiftly approved on 3/13/07 within two months of its introduction by Representative Edolphus Towns (D-NY), with 2/3 in the House agreeing to "suspend the rules" and pass the bill.

S.1561 — responding in part to the student loan scandals, to limit the discharge exception for student loans only to those made, insured, or guaranteed by a governmental unit and exclude the the broader non-governmental entities now covered by the discharge exception.  Introduced June 7, 2007 by Senator Dick Durbin (D-IL).

HR 1449 — to permit peremptory challenges to designation of a bankruptcy judge to a case within 20 days after assignment if all parties on "one side" of a case file an application requesting reassignment (with the chief judge of the circuit’s court of appeals to decide who is on "a side").   Introduced by Representatives Daniel Lundgren (R-CA), Trent Franks (R-AZ), Bill Sali (R-ID), and Buck McKeon (R-CA) on March 9, 2007.  Including bankruptcy judges in this legislation makes no sense given the difficulty in determining what "side" anyone is on in a bankruptcy case.  Nor does the problem get resolved by having the provision applicable to adversary proceedings instead of cases.  Bankruptcy judges assigned to a case have learned too much about the case to justify moving it to another judge at the whim of one of the "sides" to the adversary proceeding.

HR 4477 — giving new meaning to a bankruptcy judge’s ability to "shoot down" counsel’s arguments, by authorizing bankruptcy judges to carry a firearm on the bench, "whether concealed or not."  Introduced by Rep. Phil English (R-PA) on December 8, 2005.  Its proximity to BAPCPA’s effective date is likely pure coincidence.

Happy hunting! 

More to come in this periodic series.

© Steve Jakubowski 2007

Back from a blogging R&R to take time to smell the roses, catch up on the ever-burgeoning e-precedent file, reflect on a year gone by since my mom’s passing, and–most significantly–get the house ready for Malthusian growth with a pair of twins due sometime next month (adding to the two young Jakubowski’s already here)!  So please excuse my patchy blogging as of late, but as Livy first wrote, "better late than never…" (though, for the sake of completeness, I suppose I should add that Livy concluded, "but better never late").

Anyway, back to blogging, and thanks for reading.

As Bob Eisenbach, Francis Pileggi, and Scott Riddle were quick to observe, the Delaware Supreme Court just put the official kibosh on "deepening insolvency" as an independent cause of action.  That is not the end of the story for bankruptcy litigators, however, since Vice-Chancellor Strine’s opinion in Trenwick America Litigation Trust v. Billet, 906 A.2d 168 (Del. Ch. 2006) (pdf), upon which the Delaware Supreme Court relied, doesn’t address whether deepening insolvency remains valid as a theory of damages. 

As to the latter point, as I recapped here and here, last year the Third Circuit in Seitz v. Detweiler, Hershey & Assocs., P.C. (In re CitX, Inc.), 448 F.3d 672 (3d Cir. 2006) (pdf), held that–at least under Pennsylvania law–deepening insolvency "is not an independent form of corporate damage" and that its earlier decision in Official Comm. of Unsecured Creditors v. R.F. Lafferty & Co., 267 F.3d 340 (3d Cir. 2001) (pdf), "should not be interpreted to create a novel theory of damages for an independent cause of action like malpractice … [or] for any other cause of action, such as fraud."  In support of this proposition, the Third Circuit pointed to bankruptcy lawyer/novelist Sabin Willett’s oft-cited article, The Shallows of Deepening Insolvency, 60 Bus. Law. 549, 575 (2005), for the proposition that "[w]here an independent cause of action gives a firm a remedy for the increase in its liabilities, the decrease in fair asset value, or its lost profits, then the firm may recover, without reference to the incidental impact upon the solvency calculation."

Two recent opinions authored by the Seventh Circuit’s Judge Posner and the Southern District of New York’s Judge Lewis A. Kaplan, however, don’t adopt this per se rule (or at least, as regards Judge Kaplan, not in its entirety).  In Fehribach v. Ernst & Young LLP, 2007 WL 2033734 (7th Cir. 7/17/07) (pdf), Judge Posner provides the following short discourse on the "controversial theory" of deepening insolvency as a theory of damages (including answering how shareholders might be "ineluctably" harmed by a company’s deepening insolvency):

Continue Reading Damages for Deepening Insolvency: Judges Posner and Kaplan Consider the Elements of Proof

Be sure to free some time up between 10:00 and 11:00 a.m. EDT on July 12 for this free web seminar sponsored by the Washington Legal Foundation entitled The Ongoing Saga of Marshall v. Marshall: Beyond the Anna Nicole Headlines. 

The speakers are WilmerHale’s Craig Goldblatt (a friend of this blog who has filed many cert. petitions and merits briefs before the US Supreme Court, including, most recently, in In re Marrama), and Horace Cooper, former counsel to Former House Majority Leader Dick Armey and senior fellow with the National Center for Public Policy Research and the Centre for New Black Leadership. 

The program promises to:

  • Discuss the case’s current posture before the 9th Circuit Court of Appeals
  • Review the case’s implications for federal/state parallel litigation, especially in cases involving bankruptcy and probate.
  • Analyze key issues pending before the appellate court, including claim & issue preclusion and “core proceeding” determinations.
  • Consider the ramifications of the case, and the Court’s opinion in Marshall v. Marshall, on future estate planning probating of wills & trusts.

Here’s the program invitation.  As an added bonus, you can submit questions during the program by email to interactive@wlf.org.

Finally, here’s a link to my post on the Supreme Court’s Marshall v. Marshall decision, which has at the end a link to other posts of mine pertinent to the case.

© Steve Jakubowski 2007

As noted in the section of my BAPCPA outline of one year ago entitled "The Hanging Paragraph: Section 1325(a)(*) — The "Car Loan Protection" Provision: The Law of Intended and Unintended Consequences, a pesky little decision by Judge (and former Army captain) Richard Stair, Jr. in In re Ezell, 338 B.R. 330 (Bankr. E.D. Tenn. 2006), caught the attention of auto lenders because it held, for the first time, that an auto lender in a chapter 13 case must accept a surrendered car in full satisfaction of its claim (thus denying the lender its state law right to a deficiency for any shortfall).

Somehow, between then and now, the holding in Ezell became the "majority" rule in the land, much to the sure chagrin of the auto lobby.  After all, as brilliantly documented in a paper by Univ. of Wisconsin’s William Whitford entitled A History of the Automobile Lender Provisions of BAPCPA, the auto lobby drafted the "hanging paragraph" and had Michigan Senator Spencer Abraham introduce it in a 1998 amendment to the proposed legislation.  (See Whitford, at pp. 34-36).  Remarkably, the paragraph hung there through BAPCPA’s enactment without change.  Now one may wonder why an obvious grammatical faux-pas like a "hanging paragraph" went uncorrected for seven years, but it’s hard to attribute the error to sloppy last-minute drafting.

The minority view among bankruptcy courts regarding the auto lender’s claim against a surrendering debtor in a chapter 13 case was best articulated in my view by Nevada’s Judge Bruce A. Markell (a philosophical wizard who is one of the bankruptcy bench’s most capable Code constructionists) in In re Trejos, 352 B.R. 249 (Bankr. D. Nev. 2006), a case that I’ve wanted to discuss for almost a year now.  In it, Judge Markell ultimately concluded that Ezell was wrongly decided.  Still, as he said, "the basics of how to interpret statutory text such as the hanging paragraph are not unduly complicated, but (as always) the devil is in the details."  [NB: (Judge Easterbrook, concurring.)]

In analyzing the "hanging paragraph," Judge Markell starts with "plain meaning" (as required by Ron Pair), considers the context (as the textualist approach of Justice Scalia and Harvard’s Professor John Manning mandates), seeks additional clues in bankruptcy’s slang (or "gibberish"), but above all "[will] not condone … the imputation of a congressional purpose based on materials that cannot or do not reflect a unitary congressional purpose, followed by the use of that purpose to definitively construe straightforward text."  Id. at 258.  Judge Markell concludes:

Continue Reading Judge Easterbrook Doesn’t Get Hung Up by the Hanging Paragraph of “the 2005 Act”

The Truman Show is Jim Carrey’s greatest acting moment and one of Peter Weir’s greatest directorial moments.  In this first reality TV show from which all current variants have been spawned, Jim Carrey plays Truman Burbank, an unwanted baby who’s been adopted by T.V. Corp. to play the lead role in a world that everyone in the world, but him, knows has been staged. 

But what do The Truman Show and Enron have in common?  More than one might think.  Apparently between August 2001 and December 2001, Enron considered engaging Goldman, Sachs & Co. to explore–as Goldman described it in recent Court filings–"options for the company in response to declines in its stock price and perceived takeover vulnerability and to consider the company’s need to prepare for hostile takeovers and sale transactions that might improve its balance sheet."

Goldman’s adversaries in litigation allege in this complaint that Enron’s $1 billion prepayment of short-term commercial paper within 5 weeks of the bankruptcy filing at face value (instead of the junk market price they were really worth) was both a preferential and a fraudulent transfer (Goldman got about $300 million).  They also disputed Goldman’s innocuous description of its discussions with Enron, preferring instead to characterize them as "discussions of a potential engagement under which Goldman would serve as a consultant to advise Enron on ways to stave off the pending financial debacle." 

Curiously, the nickname Goldman pinned on the project was "Project Truman."  Deal nicknames often say a lot about the nature of the deal, and given that Enron was by any measure the greatest financial illusion in corporate history, attaching the moniker "Project Truman" on the potential engagement is a telling premonition of trouble afoot.  Still, no one yet has fessed up to who chose that nickname for the project–or why.

Notably, the only reference to "Project Truman" in any actual substantive document produced in the litigation to date is in these "Discussion Materials" that were distributed at a "Project Truman" lunch meeting that Ken Lay and Andrew Fastow had scheduled with Goldman in Woodland, Texas for September 6, 2001, just five days before the tragedy of 9/11 sent the financial markets into a tailspin and effectively dried up whatever liquidity remained at Enron.

On page 6 of the Discussion Materials, the bold-faced-boxed-word "Truman" rests atop a decision tree detailing Enron’s "next steps" after "Truman."  Based on the discussion at page 5 of the materials entitled "What Message Do You Deliver to the Street," the boxed reference to "Truman" sure looks like a convenient tag for the preceding page’s 12-point Truman-esque bubble-bursting "message to the street."  The Goldman decision tree under the bold boxed word "Truman" suggests that once "Truman" confronts reality, one should first measure the effect of that reality check on "credit stability."  If the effect is positive (or "yes"), then continue to the next level down and determine whether "establishing counterparty confidence" can be achieved.  Conversely, if the effect on credit stability is negative (or "no"), then say sayonara to Enron in a "quick sale."  For his part, Fastow had this to say about the Project Truman meeting with Goldman, which was quite a different spin on the meeting than Lay recounted at trial.

Back now to the avoidance litigation over the pre-bankruptcy payoff of the junk commercial paper.  In February of this year, a few of the defendants in this protracted litigation (docket here) requested from Goldman all documents relating to Project Truman.  Goldman respectfully declined, arguing that it was irrelevant.  The defendants moved to compel production (joined by the Enron litigation trust).  Goldman objected and the movants replied (as did Enron).

Judge Arthur Gonzalez (a former 13 year veteran schoolteacher in New York’s public schools who won the equivalent of the "Bankruptcy Judge Lottery" by having been randomly selected to be the presiding judge — at the same time — over the two largest bankruptcies of all time: Enron and Worldcom), took little time to decide this discovery dispute.  Just nine days after about 800 pages in briefs and exhibit attachments had been finally submitted, he issued this ruling granting the motion to compel production, concluding:

light of (1) the discovery posture of this case following a denial of a motion to dismiss and motion to stay discovery; (2) the broad definition of relevance articulated in Fed. R. Civ. P. 26, (3) the overall relevance of the Project Truman materials to the issues of Goldman’s agency and good faith, and (4) the acknowledged lack of burden on Goldman to produce such material, this Court finds that the motion to compel is warranted.

Judge Gonzalez also rejected Goldman’s suggestion for an in camera review of the materials, stating:

Such review is more appropriate in circumstances involving privileged or confidential information. The Court agrees with the Movants that a court’s in camera inspection “is no substitute to full disclosure to, and review of the disputed materials, by a litigant’s counsel, who is best positioned to know the party’s strategy and assess the relevance vel non of the information contained within the disputed materials.

Of course, my theory on why Truman was selected as the nickname for the deal is complete speculation.  But considering that the movie had been released three years earlier, and only two years earlier on video, perhaps the movie was still fresh in the mind of a Goldman deal kingpin looking for a creative–and apt–nickname for the bursting of the greatest financial illusion in corporate history.  Time will tell.

© Steve Jakubowski 2007

Time to catch up on more "Picks of the Month."  These picks are for May 2007:

Today’s feature is Delaware, one of my favorite states, with its rolling hills, surprisingly lush forests, superlative courts (notwithstanding some opinions to the contrary, critiqued here), and outstanding bloggers–both "old" (e.g., Francis Pileggi’s "must-read" Delaware Corporate and Commercial Litigation Blog) and "new" (e.g., Chuck Kunz’s and Morris James’s Delaware Business Bankruptcy Blog).

The inset chart is from the March 2005 Newsletter of the Federal Courts, entitled For Delaware Bankruptcy Court, Appeal is a Mixed Blessing, and supports the point that though "according to the [complicated federal bankruptcy] judgeship formula, Delaware should currently field a team of 13 bankruptcy judges, [t]hey have two."  Since then, as reported here, they added more (to the delight of Delaware’s district court judges who pinch-hit for years to help carry the load)! 

Finally, speaking of Delaware Bankruptcy Courts, as attested to in Francis Pileggi’s link to Kevin LaCroix’s post in the D&O Diary on Judge Kevin Gross’s recent D&O coverage ruling in the World Health Alternatives case, a once great lawyer is proving to be a great judge too!

[6/22/07 Update:  Be sure to read Bob Eisenbach’s excellent commentary on Judge Gross’s decision, entitled Who Gets the Benefit of a D&O Policy’s Proceeds: The Directors and Officers or the Bankruptcy Trustee? Thanks also to Delaware’s gentleman and scholar, Francis Pileggi, for his kind words and links to this post!]

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Continue Reading Picks of the Month: Required Bankruptcy Reading for May 2007

The following comparative bankruptcy-related scholarly papers, arranged by SSRN abstract ID number, can be downloaded from the Social Science Research Network website:

 

[The inset image was taken from Tom Kirkendall’s post on the passage last August of "long-awaited amendments to China’s bankruptcy laws."  These amendments took effect June 1, 2007.  Those clammering for more on China’s bankruptcy laws, be sure to read this interview with Cadwalader’s Deryck Palmer and John Rapisardi, as well as this post by Dan Harris on the China Law Blog.  There’s also a helpful recent summary written by DLA Piper’s China-based partners Prue Mitchell, Louis Meng, and Lampros Vassilou entitled, China’s New Bankruptcy Law: A Long-Awaited Compromise.]

[6/12/07 – Update:  Check out Bob Eisenbach’s follow up on China’s new bankruptcy law at his (In the Red) Business Bankruptcy Blog, which links to an English translation of the new law and other pertinent topics.]

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Univ. Paris IX Dauphine’s Anne Epaulard and Univ. of Lausanne’s Aude Pommeret, "Bankruptcy Law and Firms’ Behavior" (Abstract ID: 987999)

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York University Law School’s Stephanie Ben-Ishai, "Bankruptcy for the Poor?" (Abstract ID: 974779)

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London Business School’s Viral V. Acharya and Emory University’s Krishnamurthy Subramanian, "Bankruptcy Codes and Innovation" (Abstract ID: 971566)

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Cranfield University’s Vineet Agarwal and Univ. of Edinburgh’s Richard Taffler, "Comparing the Performance of Market-Based and Accounting-Based Bankruptcy Prediction Models" (Abstract ID: 968252)

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Cranfield University’s Puliyur Sudarsanam, Nottingham University’s Mike Wright, and Cranfield University’s Jian Huang, "Going Private Buyouts and Shareholder Wealth Gains: Impact of Bankruptcy Risk" (Abstract ID: 967731)

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Institute for Macroeconomic Analysis and Development’s Arjana Brezigar Masten and Univ. of Ljubijana’s Igor Master, "Comparison of Parametric, Semi-Parametric and Non-Parametric Methods in Bankruptcy Prediction" (Abstract ID: 967637)

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Nagoya City University’s Kotaro Inoue, Nagoya University’s Hideaki Kiyoshi Kato, and Nanzan University’s Marc Bremer, "Corporate Restructuring in Japan: Who Monitors the Monitor?" (Abstract ID: 965595)

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Domagoj Satjer, "Must Bankruptcy Administrators Be Corporate Undertakers? Creation and European Perspectives of Restructuring in Bankruptcy" (Abstract ID: 965367)

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Cambridge Associates Asia Pte Ltd’s Beng Tat Lee, "Claiming a Pound of Flesh as a Contingent or Prospectives Creditor Under the Companies Act" (Abstract ID: 965259)

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Univ. of Waterloo’s J. Efrim Boritz and Duane B. Kennedy and Univ. of Auckland’s Jerry Y. Sun, "Predicting Business Failures in Canada" (Abstract ID: 963767)

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Univ. of Amsterdam’s Joseph A. McCahery, "Creditor Protection in a Cross-Border Context" (Abstract ID: 963348)

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Univ. of Milan’s Francesco Denozza, "Different Policies for Corporate Creditor Protection" (Abstract ID: 963345)

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Univ. of Mainz’s Peter O. Mulbert, "A Synthetic View of Different Concepts of Creditor Protection, Or: A High-Level Framework for Corporate Creditor Protection" (Abstract ID: 963342)

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Univ. of Munich’s Horst Eidenmuller, "Trading in Times of Crisis: Formal Insolvency Proceedings, Workouts and the Incentives for Shareholders/Managers" (Abstract ID: 963337)

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Univ. of Freiburg’s Hanno Merkt, "Creditor Protection Through Mandatory Disclosure" (Abstract ID: 963327)

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Abstracts for each of these papers follows: 

Continue Reading Recent Comparative Bankruptcy-Related Articles of Interest Available for Downloading from SSRN