Emory Bankruptcy Developments Journal

Volume 33Issue 2
The Fourteenth Annual Emory Bankruptcy Developments Journal Symposium
Symposium

Introduction

Jacob Dean | 33 Emory Bankr. Dev. J. 391 (2017)

The Emory Bankruptcy Developments Journal hosted its Fourteenth Annual Symposium on February 23, 2017. The Consumer Panel discussed the doctrine of judicial estoppel in bankruptcy. The Corporate Panel discussed chapter 11 cramdown interest rates and debated the proper valuation method.

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Consumer Panel—Judicial Estoppel: Its Development, Current Status, and How the Eleventh Circuit’s Forthcoming Opinion in Slater Might Portend the End of its Rigidity

The Honorable Paul W. Bonapfel, Sacha Dyson, J. Erik Heath, Leon Jones | 33 Emory Bankr. Dev. J. 393 (2017)

The Consumer Panel presented a history of the doctrine of judicial estoppel, how it applies in bankruptcy, and offered insights about the doctrine’s viability in bankruptcy.

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Corporate Panel—Chapter 11 Cramdown Interest Rates: Till, Momentive, and the Proper Valuation Method

Ralph Brubaker, Anthony J. Casey, Susan M. Freeman, Bruce A. Markell | 33 Emory Bankr. Dev. J. 425 (2017)

The Corporate Panel debated the appropriate way to determine chapter 11 cramdown interest rates.

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Article

Nine Into Eleven: Accounting for Common Interest Communities in Bankruptcy

C. Scott Pryor | 33 Emory Bankr. Dev. J. 455 (2017)

Like both public and private entities, common interest communities such as homeowner’s associations can experience the problem of financial distress. The ultimate solution to financial distress is relief under the Bankruptcy Code. Private entities are eligible for relief under chapter 11, but municipalities are eligible for relief under chapter 9. Chapter 9 affords municipalities significant protections compared to private entities under chapter 11. Nonetheless, even though common interest communities also provide public goods, they are eligible for relief only under chapter 11 and thus lack the protections afforded by chapter 9. Chapter 11 of the Code should be amended in two ways to afford common interest communities some of the benefits of chapter 9. Without these amendments, common interest communities in financial distress and their members will be less likely to reorganize, and the cost of providing public goods will revert to the local community and its taxpayers.

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Comments

Coming to a Retailer Near You: Consumer Privacy Protection in Retail Bankruptcies

Kayla Siam | 33 Emory Bankr. Dev. J. 487 (2017)

Consumers’ personally identifiable information is an extremely valuable asset for retailers. The sale of consumer information causes problems for consumers because many bankruptcy retailers transfer personally identifiable information to third parties without notifying consumers beforehand and obtaining their consent. Perhaps most troubling, however, is that retailers facing financial turmoil sometimes sell personally identifiable information in direct violation of their own privacy policies, which specifically promise the safeguarding of consumer information. Numerous regulatory bodies have objected to such transfers, but to no avail. This Comment addresses the shortcomings of current privacy regulations both inside and outside of bankruptcy. Additionally, this Comment recommends the implementation of minimum federal privacy standards and suggests that the Bankruptcy Code include stronger consumer privacy guidelines. These approaches would allow consumers to have a say in who receives their personally identifiable information while simultaneously preserving the status quo.

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Finding a “Cure”: How Much Interest Is Enough for a Chapter 11 Cure?

Jacob Dean | 33 Emory Bankr. Dev. J. 523 (2017)

Default-rate interest—interest triggered by breach of a contractual obligation—implicates both a determination of claim’s status and the claim’s ultimate confirmation. Moreover, default-rate interest can not only amount to millions of dollars rapidly, but also jeopardize a chapter 11 plan’s chances at confirmation. In August 2015, a panel of judges on the Eleventh Circuit ruled on the matter, creating a circuit split for a brief time until a Ninth Circuit panel addressed the question in 2016. Last year, the Ninth Circuit eliminated the split, and all circuits now agree the plain language of the Bankruptcy Reform Act of 1994, an amendment Congress added in 1994 to overrule a Supreme Court case, allows for collection of default interest. The circuits previously disagreed, however, whether Congress intended a requirement for “cure” to be payment of interest at the default rate. This Comment explains why both panels are incorrect.

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Mixing Business With Pleasure: Evaluating the Blurred Line Between the Ownership of Business and Personal Social Media Accounts Under § 541(a)(1)

Alexandra L. Jamel | 33 Emory Bankr. Dev. J. 561 (2017)

Social media platforms like Facebook, LinkedIn, and Twitter are household names today. Despite the current popularity of social media, however, few courts have addressed the ownership rights in social media accounts. Fewer still have addressed whether a social media account is considered property of the estate. In a case of first impression in 2015, the Bankruptcy Court for the Southern District of Texas concluded that a debtor’s Twitter and Facebook accounts fell under property of the estate. This Comment argues that social media accounts should not automatically fit within the broad scope of § 541(a)(1). Rather, courts should apply a factor-driven, case-by-case analysis to determine whether social media accounts constitute property of the estate. This Comment then proposes a three-prong analytical framework to guide courts’ classification of a debtor’s social media accounts.

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