Bankruptcy/Reorganizations

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I was fortunate to run into my friend Pamela Foohey at a reception at the Association of American Law Schools annual meeting last week. I had known that the book on consumer bankruptcy she coauthored (with Robert Lawless and Deborah Thorne) had been released. But I had not yet read it. I was especially lucky to catch Pamela that night when she had a copy of the book with her. After a brief conversation, she was kind enough to offer it to me. I began reading it on the flight home. So far, it is an illuminating and fascinating read. 

The book I am referencing, Debt’s Grip, reports on the most recent iteration of the Consumer Bankruptcy Project. For those who may be unfamiliar with the Consumer Bankruptcy Project, it is a long-term (now over 40 years in duration), periodic review of consumer bankruptcies. This most recent study involves the reporting and analysis of eleven years of data assembled from bankruptcy case files and surveys of the related households. While some of the takeaways are unsurprising, the book’s documentation of the nature the filers, their cases, and the outcomes paints a compelling picture of the greater socioeconomic environment…

Friend-of-the-BLPB Beth Burch has announced that the University of Georgia School of Law is conducting an open-rank search for four or five full-time, tenure-track or tenured faculty. Hiring priorities include multiple business law areas–contracts, bankruptcy, and secured transactions–as well as property, torts, environmental law, business law/corporations, banking, international law, administrative law, and employment law. You can find the posting here.

If you’re interested, feel free to reach out to Beth at LawHiring@uga.edu.

The College of Law at the University of Oklahoma (OU Law) seeks outstanding applicants, entry-level or lateral, for up to three full-time tenure/tenure-track positions to begin in the Fall Semester of 2025, at the rank of Associate Professor or Professor.  OU Law welcomes applicants in all subject areas but has particular interest in filling curricular needs in Bankruptcy, Constitutional Law, Criminal Law (principally upper-division electives), and Family Law. 

OU Law’s strong national reputation is buttressed by a commitment to attracting and supporting excellent faculty with summer research grants, publication placement bonuses, course reductions based on scholarly productivity, and an extraordinary number of endowed positions. 

OU Law is a high-quality, affordable, and forward-looking institution committed to developing a socially involved legal profession. OU Law boasts world-class facilities, a commitment to technological innovation, and a varied student body. 

OU Law sits on the university’s main campus in Norman, a college town alive with entertainment, arts, food, and sports. A perennial “best place to live,” Norman has excellent public schools and low cost-of-living.  Neighboring Oklahoma City features a dynamic economy, outstanding cultural venues, and a major airport. For additional information regarding the university, Norman, and Oklahoma City, visit: 

https://www.ou.edu/facultyrecruitment    https://www.visitnorman.com/    https://www.visitokc.com/…

USC Gould School of Law and Lewis & Clark Law School present the inaugural West Coast Bankruptcy Roundtable to be held February 3-4, 2022 in Los Angeles.  Spearheaded by Robert Rasmussen, Michael Simkovic, and Samir Parikh, the Roundtable seeks to bring together experienced and junior scholars to discuss particularly noteworthy scholarship involving financial restructuring and business law.  We seek scholars exploring diverse topics and will be interested in interdisciplinary perspectives.

The Roundtable invites the submission of papers.  Selected participants will receive a $1,000 stipend and have the opportunity to workshop their papers in an intimate, collegial setting.  Current attendees include Barry Adler (NYU), Ken Ayotte (Berkeley), Douglas Baird (Chicago), Bruce Bennett (Jones Day), Mitu Gulati (UVA), Yair Listokin (Yale), Bruce Markell (Northwestern), Ed Morrison (Columbia), Alan Schwartz (Yale), Jamie Sprayregen (Kirkland & Ellis), David Skeel (Penn), and Fred Tung (BU). 

Papers will be selected through a blind review process.  Scholars are invited to submit a 3 – 5 page overview of a proposed paper.  Submissions may be an introduction, excerpt from a longer paper, or extended abstract.  The submission should be anonymized, and – aside from general citations to the author’s previous articles – all references to the author should…

USC Gould School of Law and Lewis & Clark Law School present the inaugural West Coast Bankruptcy Roundtable to be held February 3-4, 2022 in Los Angeles. Spearheaded by Robert Rasmussen, Michael Simkovic, and Samir Parikh, the Roundtable seeks to bring together experienced and junior scholars to discuss particularly noteworthy scholarship involving financial restructuring and business law. We seek scholars researching diverse topics and will be interested in interdisciplinary perspectives.

The Roundtable invites the submission of papers. Selected participants will receive a $1,000 stipend and have the opportunity to workshop their papers in an intimate, collegial setting.

Papers will be selected through a blind review process. Scholars are invited to submit a 3 – 5 page overview of a proposed paper. Submissions may be an introduction or excerpt from an existing unpublished paper, an extended abstract, or a general paper proposal. The submission should be anonymized, and – aside from general citations to the author’s previous work – all references to the author should be removed.

Please submit proposals by September 7, 2021. Invitations will be issued via email by October 8th. Working drafts of papers must be available for circulation to participants by January 11, 2022.

The Roundtable…

The Mercer University School of Law seeks a candidate to fill the  Southeastern Bankruptcy Law Institute & W. Homer Drake Jr. Endowed Chair in Bankruptcy Law.  The faculty member will teach Bankruptcy Law and business related courses.  Candidates who will add to the diversity of our faculty are particularly encouraged to apply.  Mercer University is an AA/EEO/ADA employer.  Applicants should have a J.D. degree from an accredited university/college, a commitment to excellence in teaching, and demonstrated potential for excellence in research and scholarship.  Interested applicants will need to complete the brief online application at: http://hr.mercer.edu/jobs/ and attach a current CV with the names and contact information for three references.  For information contact Professor Stephen Johnson, Chair, Appointments Committee, Mercer University School of Law, Johnson_s@law.mercer.edu.

The United States Bankruptcy Court for the Western District of Kentucky has opened my eyes to some bankruptcy law issues I hadn’t previously seen. The court also committed what I consider to be a cardinal sin: the court refers to an LLC as a “limited liability corporation.”  An LLC is a “limited liability company,” which is a statutorily different entity than a corporation. 

The court states: “Sunnyview and TR are limited liability corporations. They are not individuals and do not meet the definition of insiders under 11U.S.C.§ 101(31)(B)[sic].” In re: Bullitt Utilities, Inc., No. 15-34000(1)(7), 2020 WL 547278, at *6 (Bankr. W.D. Ky. Jan. 24, 2020) (emphasis added). Other than being LLCs, and not corporations, this appears to be correct. The statute, 11 U.S.C.§ 101(31), provides: 

(31)The term “insider” includes—

. . . . 
(B)if the debtor is a corporation—
(i)
director of the debtor;
(ii)
officer of the debtor;
(iii)
person in control of the debtor;
(iv)
partnership in which the debtor is a general partner;
(v)
general partner of the debtor; or
(vi)
relative of a general partner, director, officer, or person in control of the debtor;

…

Once again, a court seems to arrive at the correct outcome, while making mistakes in the describing entity type. As usual, the court mislabeled a limited liability company (LLC).  Here we go:  

Andrea and Timothy Downs each held a 50% interest in a corporation, Downs Holdings, Inc. It held limited liability corporation (“LLC”) and limited partnership (“LP”) ownership interests. Eventually, the Downs agreed to dissolve the corporation and, as shareholders, passed a corporate resolution electing dissolution.

In re: ANDREA STEINMANN DOWNS, Debtor. NORIO, INC., Appellant, v. THOMAS H. CASEY, Chapter 7 Tr., Appellee., No. 8:16-BK-12589-CB, 2019 WL 6331564, at *1 (B.A.P. 9th Cir. Nov. 25, 2019) (emphasis added). 
 
The Downs did not follow the necessary formalities to dissolve Downs Holdings, Inc., and had instead ask that the corporation’s management company “distribute the payments and monies owed to Downs Holdings to each shareholder separately, 50% to Mr. Downs and 50% to Ms. Downs.” Id. Further, it appeared that the Downs asked to be treated as separate interest holders for both the LLC and LP. Id. Ms. Downs later borrowed $50,000 from Norio, Inc. and pledged pledged her claimed interests in the LLC and the LP as collateral. Id. at

…

I try not to use this space too often to brag on my students–the folks whose quest for knowledge gets me up in the morning.  But three of my students have been co-authors of two separate pieces in the American Bar Association’s Business Law Today publication since May.  The initiative and the follow-through that these students (two of whom have graduated and are now in private practice) exhibited is truly extraordinary.  And so, I brag . . . .

Most recently, my current student Samuel Henninger has co-authored an article with a practitioner on preference payments in bankruptcy entitled “I Scream, You Scream, We All Scream at Preference Claims.”  Samuel graduates in May 2019. He will clerk for a local bankruptcy court judge next year and then practice with Waller Lansden Dortch & Davis, LLP in Nashville after his clerkship concludes.

Back in May, my former students Brian Adams and Bo Cook co-authored an article together entitled “Limiting the Scope of Post-Closing Actions in Private Mergers & Acquisitions: The Role of Non-Reliance and Integration Clauses in Delaware,” delving into enforcement issues in mergers and acquisitions relating to allegations of fraud based on “extra-contractual representations.”  Brian and Bo…

OK.  I know it’s not yet quite time to panic about syllabi and such for the fall semester.  But that first day of class does approach, and I know some of you out there have already given some thought to innovating your teaching for the fall.  Maybe you’re new to teaching or teaching a new (or new-to-you) course.  Maybe you’re trying to spice up or change the direction of a course you’ve taught for a while.  Maybe this post will give you some new food for thought . . . .

For a number of years, my colleague George Kuney, the Director of the business law center at UT Law, has asked students to invest in a particular Chapter 11 bankruptcy case as a capstone experience in his Bankruptcy and Reorganizations course.  The students, working in pairs or small groups,  are required to review all of the documents in the case docket and provide summaries that integrate those filings with learning from the course and supplemental research.  George makes the resulting case studies available to the public.  The cumulation of case studies created by students in this course has gotten quite impressive over the years.  And the case studies get significant readership.

I…