Part II of our continuing post-mortem analysis of the US Supreme Court’s anti-climactic 9-0 ruling takes a look at the other grounds for reversal argued by Pierce Marshall in his brief to the 9th Circuit. (Sorry, only We$tlaw version available at present). Given the US Supreme Court’s remand of the case “for further proceedings consistent with this opinion,” rest assured that Anna’s and Pierce’s respective legal teams are dusting off their arguments to the 9th Circuit from three years ago. There, in addition to Pierce’s now discredited challenge based on the so-called “probate exception” to federal court jurisdiction, Pierce raised the following issues on appeal:

  • Whether the Probate Court’s prior final judgment holding, among other things, that J. Howard did not intend to give Vickie any gift, precluded the District Court’s judgment on grounds of claim preclusion, issue preclusion, and the Rooker-Feldman doctrine.
  • Whether Texas law recognizes Vickie’s alleged cause of action of “tortious interference” with an “expectancy of an inter vivos gift” and, if so, what are the elements and parameters of her novel cause of action and has Vickie met those elements.
  • Whether the District Court denied Pierce due process of law by refusing to permit him to call percipient witnesses, by substituting its judgment for that of the Texas judge and jury through collateral review of the Texas probate proceedings, by finding J. Howard’s principal estate planning instrument to be invalid, in part, on the hearsay statements of witnesses who did not testify and were not subjected to cross-examination, and by improperly handing over to Vickie all of Pierce’s documents, including privileged documents.
  • Whether the District Court erred in basing its judgment (including compensatory and punitive damages) on speculative inferences and conjecture, nonexistent or insufficient evidence, and presumed facts.

More on Pierce’s answers to these questions later. For this post, however, I want to focus on Pierce’s 71 page opening statement of facts to the 9th Circuit, which refers extensively to the relationship between Anna and J. Howard Marshall. As you’ll see, it’s far from what one would call a true “courtship” (as Justice Ginsburg did in her opinion). Instead, I am reminded of Howard Bashman’s memorable interview of Judge Easterbrook, who remarked that one reason he enjoys being a federal appeals judge is that he’s often “served up [with] facts that were proposed as soap opera scripts and rejected as too implausible.”
Here are direct quotes of some of Pierce’s saucier allegations, which — given the characters and stakes involved — surely rank this case as a leader among ones with a “too implausible,” but probably true, “soap opera script”:

Continue Reading The “Courtship” of Anna Nicole Smith – Part II: Pierce Marshall’s Appellate Arguments Reviewed

After today’s widely reported win by Anna Nicole Smith before the US Supreme Court (stories here and here), Pierce Marshall vowed that the only thing “Anna and her lawyers can take to the bank” from this win is a “continue[d] fight to clear [his] name in California federal court.” His lawyer, Eric Brunstad, echoing arguments he advanced to the Supreme Court, remarked that Anna will lose Round 2 before the 9th Circuit because she “can’t get a second bite at the apple” (a quote that reminded me, given the circumstances, of this great movie). Anna’s lawyer, Kent Richland, retorted: “We are confident that the 9th Circuit will have no problem in ruling in our favor on the issues that remain.” Round 2 of appellate review sure is shaping into another good ole’-fashioned Texas-style “hully-gully slopfest.”
Now to the decision, Marshall v. Marshall, 2006 WL 1131904, where Justice Ruth Bader Ginsberg, writing for a unanimous Court, swept aside “misty understandings of English legal history” and held, in no uncertain terms, that “the Ninth Circuit had no warrant from Congress, or from decisions of this Court, for its sweeping extension of the probate exception.” (p.2) Notably, Justice Ginsberg did not wipe away the “probate exception,” as Anna’s lawyers had urged and as Justice Stevens advocated in his concurring opinion (extolled here). Instead, she ruled narrowly, holding “that the instant case does not fall within the ambit of the narrow exception recognized by our decisions.” (p.8) (However, in marked contrast to Pierce’s portrayal of Anna here, the Court’s framing of events leading to the marriage as a “courtship” (p.2) suggests that Anna’s front-row teardrops during oral argument were not perceived by the Court as quite the crocodile tears some would have us believe.) [NB: But see here]
So what, then, is the “ambit of the narrow exception recognized by our decisions”? To Justice Ginsberg, the answer is found in the Court’s decision in Markham v. Allen, 326 U.S. 490 (1946), which she described as “the Court’s most recent and pathmarking pronouncement on the probate exception.” (p.11) This decision stated, in a quite “misty” and “mythograph[ic]” way (pp. 1-2), that “the equity jurisdiction conferred by the Judiciary Act of 1789…, which is that of the English Court of Chancery in 1789, did not extend to probate matters.” (p.11)
Justice Ginsberg noted that Markham is “enigmatic,” to be sure, but it remains good law. She wrote:

[I]t has been established by a long series of decisions of this Court that federal courts of equity have jurisdiction to entertain suits ‘in favor of creditors, legatees and heirs’ and other claimants against a decedent’s estate ‘to establish their claims’ so long as the federal court does not interfere with the probate proceedings or assume general jurisdiction of the probate or control of the property in the custody of the state court.” 326 U.S., at 494. (Emphasis in original). (pp. 13-14)

As regards how the term “interfere” should be construed, Justice Ginsberg wrote:

[W]e comprehend the “interference” language in Markham as essentially a reiteration of the general principle that, when one court is exercising in rem jurisdiction over a res, a second court will not assume in rem jurisdiction over the same res. (Citations omitted). Thus, the probate exception reserves to state probate courts the probate or annulment of a will and the administration of a decedent’s estate; it also precludes federal courts from endeavoring to dispose of property that is in the custody of a state probate court. But it does not bar federal courts from adjudicating matters outside those confines and otherwise within federal jurisdiction. (p.14)

In analyzing Anna’s case in light of the foregoing principles, Justice Ginsberg concluded that Anna wins because her claim does not — quoting Markham — “involve the administration of an estate, the probate of a will, or any other purely probate matter.” (p.15) Rather, Justice Ginsberg wrote:

Provoked by Pierce’s claim in the bankruptcy proceedings, Vickie’s claim … alleges a widely recognized tort. Vickie seeks an in personam judgment against Pierce, not the probate or annulment of a will. Nor does she seek to reach a res in the custody of a state court. Furthermore, no “sound policy considerations” militate in favor of extending the probate exception to cover the case at hand. Trial courts, both federal and state, often address conduct of the kind Vickie alleges. State probate courts possess no “special proficiency *** in handling [such] issues.” (Citations omitted). (p.15)

So Anna wins, and the judgment of the 9th Circuit is reversed, with instructions “for futher proceedings consistent with this opinion.”
Part II, coming soon, will focus on the two issues that the 9th Circuit hoped to avoid having to wrestle with by dismissing the case on jurisdictional grounds, but now will have to address head on. (So don’t be surprised to see this case back in Justice Ginsberg’s lap a year or two from now.)
The first issue is whether Anna’s counterclaim against Pierce (who clearly never should have submitted to the jurisdiction of the bankruptcy court by filing a proof of claim in Anna’s bankruptcy case) was a “core” or “non-core” proceeding. Given that the bankruptcy court found Pierce liable for almost $500 million, whereas the district court tagged Pierce for just under $100 million, Pierce’s fortune (or misfortune) may well hinge on the answer to this seemingly innocuous question, as the following very telling exchange at oral argument illustrates:

Continue Reading Pierce Marshall Readies for Another Assault on Anna Nicole Smith After the US Supreme Court Throws Her a Lifeline – Part I

The famed early English jurist Henry De Bracton (1210-1268), cited in Alden v. Maine, 527 U.S. 706, 764 nn.3-4 (1999) as the “earliest source for the common law immunity of the King,” is also the first to have said, “An ounce of prevention is worth a pound of cure.”
Bracton’s well-worn phrase springs to mind when perusing a new treatise, Attorney Liability in Bankruptcy, co-edited (and co-authored in significant part) by Corrine Cooper and Catherine Vance. Their basic conclusion: there are more hidden traps in BAPCPA than in an Indiana Jones movie. A few of the traps reviewed in the treatise are also previewed here (§ 707(b)(4)), here (§ 521), and here (“9 Traps and One Slap”).
Based on this recent decision from the 4th Circuit, it’s looking like statutes whose acronyms end with the letters “CPA” portend dark days for attorneys dealing with consumer debtors. As recently explained at length in this blog post by Holland & Knight’s Rob Glenn, the Fourth Circuit has recently held (in yet another split decision) that lawyers handling mortgage foreclosures are “debt collectors” who must comply with the provisions of the Fair Debt Collection Practices Act (FDCPA). Wilson v. Draper & Goldberg, 2006 WL 861429 (4th Cir., 4/5/06).
Best of luck to all practicing in BAPCPA’s and FDCPA’s “bramble bush.”
© Steve Jakubowski 2006

With eyes glued to the daily happenings in Houston’s trial of the century, surprisingly little attention has been given to the $12.5 million success fee recently granted to Stephen Forbes Cooper, LLC, by Judge Arthur Gonzalez (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). In re Enron Corp., 2006 WL 1030421 (Bankr. S.D.N.Y. 4/12/06) (pdf).
Back in September 2004 when Mr. Cooper first requested (motion here) a $25 million success fee for his firm (Stephen Forbes Cooper, LLC), the W$J and others suggested that Enron’s “feed trough” had become a “fee bonanza” for those, like Cooper’s firm, who could get the work.
Fourteen months later, on the eve of an 11/15/05 hearing on the fee request, Mr. Cooper submitted a reply brief (parts 1 and 2) and affidavit (with exhibits A-1 [retention order], A-2 [engagement agreement], A-3 [conflicts affidavit], B-1 [revised engagement agreement], B-2 [duty of loyalty agreement], C [retention order], and D [fascinating comparative analysis of success fees awards in 22 mega-cases]) in support of his firm’s success fee request.
The Department of Justice, through the Office of the US Trustee, jumped into the fray with both feet, advising the Court at the November 15, 2005 hearing (313 page transcript here) that it had “undert[aken] an investigation that uncovered billing practices and billing irregularities unacceptable to the U.S. Trustee, which the U.S. Trustee maintains were not disclosed to the bankruptcy court.” (pdf)
After much legal wrangling, the parties resolved their differences with the help of Bankruptcy Judge Burton R. Lifland (the famed judge of the Johns-Manville, Calpine, and Dana bankruptcies and upcoming recipient of the NY Inst. of Credit’s 1st Annual Conrad B. Duberstein Memorial Award For Excellence and Compassion in the Bankruptcy Judiciary). As reflected in this stipulated settlement with the U.S. Trustee, Cooper’s firm agreed to slice its requested success fee request in half, to $12.5 million.
For its part, the Court had this to say about how to define — and price — “success” in bankruptcy:

Continue Reading The Price of Success: Enron’s Bankruptcy Court Approves $12.5 Million Success Fee for Stephen Forbes Cooper, LLC

Once upon a time, bankruptcy courts — like the one overseeing Kmart’s chapter 11 case in late 2002 — routinely entered orders (like these) granting the debtor “open-ended permission to pay any debt to any vendor deemed ‘critical’ in the exercise of unilateral discretion, provided that the vendor agreed to furnish goods on ‘customary trade terms’ for the next [several] years.”
This preference of one creditor group over another (in Kmart’s case amounting to over $300 million in preferential postpetition payments to about 2330 so-called “critical” vendors) irked one small band of excluded vendors and creditors enough that they appealed the bankruptcy court’s decision…and won! In re Kmart Corp., 359 F.2d 866 (7th Cir. 2004) (pdf).
In striking down these payments, the 7th Circuit’s Judge Easterbrook took direct aim at the use of Bankruptcy Code section 105(a) (which allows a bankruptcy to “issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of” the Bankruptcy Code) to justify such preferential payments through incorporation of the old “necessity” doctrine. He wrote:

[Bankruptcy Code section 105] does not create discretion to set aside the Code’s rules about priority and distribution; the power conferred by § 105(a) is one to implement rather than override. Every circuit that has considered the question has held that this statute does not allow a bankruptcy judge to authorize full payment of any unsecured debt, unless all unsecured creditors in the class are paid in full. We agree with this view of § 105. “The fact that a [bankruptcy] proceeding is equitable does not give the judge a free-floating discretion to redistribute rights in accordance with his personal views of justice and fairness, however enlightened those views may be.” [Citation omitted.]
A “doctrine of necessity” is just a fancy name for a power to depart from the Code. Although courts in the days before bankruptcy law was codified wielded power to reorder priorities and pay particular creditors in the name of “necessity”-today it is the Code rather than the norms of nineteenth century railroad reorganizations that must prevail. [Those court decisions] predate the first general effort at codification, the Bankruptcy Act of 1898. Today the Bankruptcy Code of 1978 supplies the rules. Congress did not in terms scuttle old common-law doctrines, because it did not need to; the Act curtailed, and then the Code replaced, the entire apparatus. Answers to contemporary issues must be found within the Code (or legislative halls). Older doctrines may survive as glosses on ambiguous language enacted in 1978 or later, but not as freestanding entitlements to trump the text. (Citations omitted)

Even before the 7th Circuit issued its decision upholding the district court’s reversal (pdf) of Judge Sonderby’s “first-day” order approving the “critical vendor” payments, Kmart filed a host of short, nearly identical two-count complaints (like this) against hundreds of entities that received the challenged payments. Count I of these complaints sought avoidance of the payments under Code sections 549 (dealing with avoidable postpetition transfers) and 550. Alternatively, Count II sought recovery under Section 105, the bankruptcy lawyer’s refuge of last resort.
In a wide-ranging, 62 page unpublished opinion, Judge Sonderby denied the creditors’ motion to dismiss Count I, but granted the motion to dismiss Count II. In so doing, the opinion —

  • details the complex procedural history of the case, including the quick thinking employed by the litigants when the district court’s bombshell reversal came down a mere two days before the start of Kmart’s confirmation hearing (pp. 2-13);
  • rejects the movants’ “plain meaning” arguments that recovery should be denied under Code section 549 because the Court had previously authorized such payments (pp. 13-24);
  • notes the banishment by the 7th Circuit of the term “equitable mootness” from the local lexicon (pp. 20-21);
  • dissects when a “private right of action” arises in the bankruptcy context (such as “in connection with alleged violations of the discharge injunction and the filing of inflated secured claims”), and concludes that no such “separate and independent action exists under §105(a)” (pp. 24-33);
  • reviews at length the doctrine of judicial estoppel and its inapplicability to this case, finding not only that Kmart was not “exploiting” the 7th Circuit’s reversal of the critical vendor order, but that “application of the doctrine under the circumstances of this case would itself amount to [] a perversion [of the doctrine of judicial estoppel]” (pp. 33-48);
  • affirms the adequacy of provisions in the confirmed plan purporting to retain these avoidance actions, even though the pre-confirmation plan modifications were made without attempting to resolicit votes on the plan (pp. 48-58);

    • and

  • punts the remaining arguments, including detrimental reliance, equitable estoppel, and recoupment, as “fact-intensive defenses inappropriate for disposition at this time” (pp. 58-61).

Judge Sonderby obviously has long ruminated about the mess spawned by the reversal of her “critical vendor” order. Now, in an unpublished decision, she has given us much to ruminate about too.
© Steve Jakubowski 2006

Ran across a great publication recently, the Preference Quarterly Law Journal, an Atlanta-based email publication of Alston & Bird’s Mark Duedall (who also is an editor of Norton’s Bankruptcy Law and Practice, former FSU law professor, and diehard FSU fan) and Nelson Mullins Riley & Scarborough’s Byron Starcher.
© Steve Jakubowski 2006
There’s much to ponder in this latest publication alone, the 2nd of the Journal’s 2nd publishing season. If you want to subscribe, send an email to preferencequarterly@nelsonmullins.com and ask to be added to the list.
Best of luck, guys! Let’s hope we’re all around to celebrate the Journal’s 50th anniversary!
While you’re browsing for preference-related publications, be sure to grab another great resource that’s hot off the press: The Preference Defense Handbook: The Circuits Compared, an ABI publication written by Barnes & Thornburg’s Debbie Thorne and Moore & Van Allen’s David Wheeler.

Houston’s Bankruptcy Judge Marvin Isgur again takes the forefront in interpreting BAPCPA’s thorny provisions (as he did here, here, and here), this time issuing a controversial opinion on whether the automatic stay applies to ineligible debtors whose cases have been dismissed under BAPCPA for lack of credit counseling. In re Salazar, 2006 WL 827842 (Bankr. S.D. Tex., 3/29/06) (pdf).
Having previously dismissed the debtor’s petition because the debtor failed to obtain credit counseling in advance of the filing of the petition, Judge Isgur was then asked to decide whether the automatic stay applied during the period between the time of the filing of the petition and the time the Court declares the debtor ineligible under BAPCPA’s Code section 109(h).
What was at stake? A lot, for the debtor’s friendly neighborhood subprime lender (Ameriquest Mortgage) had done what most lenders won’t do without a court order; that is, proceed wilfully postpetition with a pending foreclosure sale without first obtaining relief from the automatic stay. Because actions in violation of the automatic stay are generally deemed void (not merely voidable), application of the automatic stay to the period between the ineligible debtor’s filing and the close of the debtor’s case would render the foreclosure a nullity. In dictum, Judge Jeffery A. Deller concluded just that in In re Tomco, 2006 WL 459347 (Bankr. W.D. Pa., 2/27/06) (pdf) (while disagreeing with Judge Cecelia G. Morris’s dictum in In re Rios, 336 B.R. 177, 180 n.2 (Bankr. S.D.N.Y. 2005) (pdf) about BAPCPA’s “less automatic” stay).
Judge Isgur, however, reached a contrary result. His ruling appears to be the first actual decision on the merits nationwide, and his conclusions couldn’t have been clearer. He wrote:

[I]t is implausible to believe that Congress specifically identified people to exclude from the bankruptcy process, yet permitted those same people to benefit from bankruptcy’s most powerful protection: the automatic stay. Both logic and the statute dictate that no automatic stay arises on the filing of a petition by an ineligible person�. [T]he relevant statutory language leaves no room for discretion. (Emphasis in original.)

This opinion won’t win Judge Isgur much praise from those looking to judges to “subvert” (to use Professor Jean Braucher’s framework discussed here) BAPCPA’s less palatable provisions. But the result, he ruled, was dictated by applying simple logic to the answers reached on the following three questions:

(1) When does the stay takes effect under Code section 362?
(2) When is a petition filed under Code sections 301 and 302?
(3) Who may be a debtor under Code section 109?

Applying straight-forward, syllogistic logic, Judge Isgur essentially concluded that Congress had so tied his hands that there was nothing he could do to unwind the postpetition foreclosure sale of the hapless debtor’s home. He wrote:

[W]hen read together, §§ 109(h), 302, and 362(a) establish that no stay can exist for debtors who fail to obtain the required credit counseling or qualify under an exception. The syllogism is as follows:

  • Individuals who have not received credit counseling and who do not qualify for a waiver are not eligible to be debtors under § 109.
  • Only eligible individuals may file a petition under § 302.
  • Without the filing of a petition under § 302, the automatic stay provisions set forth in § 362 are not invoked.

Judge Isgur could have finished there and moved on to another of the 11,000 cases on his docket, as the hard-nosed lobbyists who drafted BAPCPA and crammed it down everyone’s throats intended, but Judge Isgur wasn’t so easily shaken from his judicial roots and felt compelled to delve into the problematic practical implications of his ruling. He wrote:

Continue Reading Judge Isgur Holds that the Automatic Stay Doesn’t Apply to Ineligible Debtors Under BAPCPA Who Failed to Get Credit Counseling

Bankruptcy matters have been the focus of several recent posts by A. Benjamin Spencer, a rising star who is currently Assistant Professor of Law at the University of Richmond School of Law and the brains behind two terrific blogs that have recently caught my attention.
His first blog, started last September, is the Federal Practice Bulletin blog, which I highly recommend to all bankruptcy litigators. His latest post is entitled “Fourth Circuit Holds that Class Action Not Superior Method Under Rule 23(b)(3) Compared to Adversarial Bankruptcy Proceeding.” In it, he cites to a recent decision, Gregory v. Finova Capital Corp., 2006 WL 619063 (4th Cir., 3/14/06) (pdf), where the Fourth Circuit issued another fractured opinion, this time reversing as an abuse of discretion a decision of the South Carolina district court certifying a securities fraud class action case commenced by the debtor’s noteholders against the debtor’s principal lender on the basis that the Creditors’ Committee had already commenced an adversary proceeding against the lenders containing similar securities fraud allegations.
Given the split within the 4th Circuit itself, Professor Spencer must have had a tough time deciding whether to include the Gregory case on his Federal Practice Bulletin blog or his second blog, started last October, called “Split Circuits” (though “split circuits” generally relate to splits among the circuits, not splits within a single circuit itself). Bankruptcy practitioners have long known that if you look hard enough, you’ll find a bankruptcy court opinion to support just about any litigation position asserted, so don’t be surprised then to see Professor Spencer blogging about bankruptcy quite frequently in his Split Circuits blog, as he did in these two recent posts:

Petition for Cert. Filed to Settle Circuit Split re application of 28 U.S.C. § 1367 to Bankruptcy Jurisdiction; and

Fourth Circuit Notes Circuit Split re Whether Bankruptcy Law “Property of the Estate” Includes Property the Debtor Fraudulently Transferred.

Best of luck Professor Spencer and thanks for your contributions to the blogosphere!
UPDATE: Special thanks to Craig Goldblatt of WilmerHale’s DC Office for sending along pdf’s of the cert. petition and the corresponding appendix in the Sasson v. Sokoloff case regarding the applicability of 28 USC § 1367 and principles of “pendant,” “ancillary,” and “supplemental” jurisdiction in bankruptcy cases. With bankruptcy-related procedural issues among Justice Ruth Bader Ginsburg’s favorite topics, we sure hope that the Supreme Court grants the cert. petition. It certainly is an issue that daily affects the decisions of bankruptcy judges and litigators.
© Steve Jakubowski 2006

The following BAPCPA related working papers can be downloaded from the Social Science Research Network:
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Univ. of Wisconsin’s Jodi L. Bellovary & Marquette Univ.’s Don E. Giacomino & Michael D. Akers: “A Review of Bankruptcy Prediction Studies: 1930 to Present.” (Abstract ID: 892160)
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NYU Law School’s Karen Gross & Fordham Law School’s Susan Block-Lieb: “Empty Mandate or Opportunity for Innovation? Pre-Petition Credit Conseling and Post-Petition Financial Management Education.” (Abstract ID: 884487)
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Tel Aviv Univ’s Buchmann Law School Ron Harris and Einat Albin: “Bankruptcy Policy in Light of Manipulation in Credit Advertising.” (Abstract ID: 877053)
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William & Mary Law School’s Richard M. Hynes and Univ. of Chicago Law School’s Eric A. Posner: “The Law and Economics of Consumer Finance.” (Abstract ID: 874199)
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National Consumer Law Center’s Deanne Loonin & Elizabeth Renuart: “Life and Debt: A Survey of Data Addressing the Debt Loads of Older Persons and Policy Recommendations.” (Abstract ID: 885398)
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UNLV Law School’s Judge Bruce Markell: “The Sub Rosa Subchapter: Individual Debtors in Chapter 11 after BAPCPA.” (Abstract ID: 893582)
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Widener Univ. School of Law’s Juliet Moringiello: “Has Congress Slimmed Down the Hogs?: A Look at the BAPCPA Approach to Pre-Bankruptcy Planning.” (Abstract ID: 892034)
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Abstracts for each of these working papers follow:

Continue Reading 7 BAPCPA Related Papers Available for Downloading from SSRN

The following bankruptcy-related working papers can be downloaded from the Social Science Research Network:
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NYU’s Alberto Bisin & Northwestern’s Adriano A. Rampini: “Exclusive Contracts and the Institution of Bankruptcy.” (Abstract ID: 886733)
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UCLA School of Law’s Daniel J. Bussel: “Creditors’ Committees as Estate Representatives in Bankruptcy Litigation.” (Abstract ID: 878485)
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Univ. of Texas Law School’s Jane M. Cohen: “Of Waterbanks, Piggybanks, and Bankruptcy: Changing Directions in Water Law.” (Abstract ID: 874767)
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Univ. of Chicago Law School’s Kenneth W. Dam: “Credit Markets, Creditors’ Rights and Economic Development.” (Abstract ID: 885198)
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Univ. of Georgia’s Mark Dawkins & Linda Smith Bamber & SMU’s Neil Bhattacharya: “Systematic Share Price Fluctuations after Bankruptcy Filings and the Investors who Drive Them.” (Abstract ID: 881508)
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Nottingham Business School’s Nicola Ficarella & Michael Gavirdis: “Enron & Parmalat two twins parables.” (Abstract ID: 886921)
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UNC-Chapel Hill Law School’s Melissa B. Jacoby: “Fast, Cheap, and Creditor-Controlled: Is Corporate Reorganization Failing?” (Abstract ID: 887523)
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3d Circuit Judicial Law Clerk Adam Levitin: “Toward a Federal Common Law of Bankruptcy: Judicial Lawmaking in a Statutory Regime.” (Abstract ID: 889462)
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Wichita State Univ.’s Stanley D. Longhofer and Kansas St. Univ.’s Stephen R. Peters: “Protection for Whom?” (Abstract ID: 875362)
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UCLA School of Law’s Lynn M. LoPucki: “Where Do You Get Off? A Reply to Courting Failure’s Critics.” (Abstract ID: 888325)
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Columbia Univ. Law School’s Edward R. Morrison and Davis Polk’s Joerg Riegel: “Financial Contracts and the New Bankruptcy Code: Insulating Markets from Bankrupt Debtors and Bankruptcy Judges.” (Abstract ID: 878328)
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NYS Bar Assn.: “Formations, Reorganizations, and Liquidations Involving Insolvent Corporations.” (Abstract ID: 885658)
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Northeastern Univ.’s Harlan D. Platt & Marjorie B. Platt: “Understanding Differences Between Financial Distress and Bankruptcy.” (Abstract ID: 876470)
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Univ. of Texas at Austin’s Ramesh K.S. Rao and Univ. of Md.’s Susan V. White: “The Creation of FirstCity Financial Corporation: A Clinical Study of the Bankruptcy Process.” (Abstract ID: 880762)
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Penn. Law School’s David A. Skeel, Jr. & Georg Krause-Vilmar: “Recharacterization and the Nonhindrance of Creditors.” (Abstract ID: 888182)
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SMU Law School’s Joshua C. Tate: “Game Over.” (Abstract ID: 888634)
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Univ. of Miami Law School’s William H. Widen: “Prevalence of Substantive Consolidation in Large Bankruptcies from 2000-2004: Preliminary Results.” (Abstract ID: 878388)
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Abstracts for each of these working papers follow:

Continue Reading 17 Bankruptcy-Related Working Papers Available for Downloading from SSRN