Emory Bankruptcy Developments Journal

Volume 31Issue 1
Writing Awards

Shapiro Award for Consumer Bankruptcy Writing

Keith J. Shapiro | 31 Emory Bankr. Dev. J. 55 (2014)

In a ground-breaking topic, CTRL+ALT+DELETE: Does the Bankruptcy Code Need a Reboot? The Eligibility of Consumer Digital Goods for Liquidation argues that digital goods should be eligible for resale by a chapter 7 Trustee for the benefit of creditors. Gene’s Comment demonstrates an in-depth understanding of the intersection between software licensing and bankruptcy at a level far beyond that of many practitioners. This Comment delves into the choppy waters of § 365 of the Bankruptcy Code and the first-sale doctrine to provide guidance regarding the assignability of intellectual property licenses. The Comment recognizes public and societal concerns such as the rights of the public versus copyright holders and the dynamic tension between the goals of rehabilitation of debtors and fair treatment of contractual counter-parties. In conclusion, this Comment demonstrates how, despite living in a world driven by technology, the Bankruptcy Code is flexible enough to address technological changes.

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CTRL+ALT+DELETE: Does the Bankruptcy Code Need a Reboot? The Eligibility of Consumer Digital Goods for Liquidation

Gene Goldmintz | 31 Emory Bankr. Dev. J. 57 (2014)

Gene Goldmintz argues that the first-sale doctrine should apply to digital goods. These digital goods are typically sold in single lump sum payments determined by the quantity of the good, as opposed to a licensing fee determined by usage over time. The result is that these transactions are more similar to purchases rather than licenses. The first-sale doctrine should apply despite the naming conventions utilized in the End-User License Agreements accompanying these digital goods and the form-over-substance analysis favored by courts. Even if courts refuse to recognize these transactions as purchases, § 365(f) of the Bankruptcy Code permits the assignment of these licenses as executory contracts. Through assignment, the trustee could sell off the licenses to third parties during the liquidation of the bankruptcy estate’s property in chapter 7. In doing so, the bankruptcy policy of promoting the free assignability of assets and contracts would be respected.

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Shapiro Award for Corporate Bankruptcy Writing

Keith J. Shapiro | 31 Emory Bankr. Dev. J. 81 (2014)

Keith Shapiro announced Drew Vermette as the winner of the 2014 Corporate Bankruptcy Writing Award. Drew’s Comment addresses the difficult question of whether an order denying confirmation of a plan of reorganization should be considered final or interlocutory for the purposes of appeal. This is a complicated and important issue in the bankruptcy world that has resulted in a circuit split. Drew engages in a careful and thorough analysis of the competing interpretations of finality in this context. Drew concludes that a flexible interpretation, under which a denial of a plan confirmation is final and appealable, serves the interests of judicial economy and the prevention of harm to parties in interest. Although Drew’s Comment presents a strong argument in favor of a flexible approach to finality, its true strengths lie in its clear presentation of the issue and its comprehensive investigation of both sides of the circuit split.

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Interpreting Finality in § 158(d): Whether an Order Denying Confirmation of a Debtor’s Reorganization Plan Should Be Considered Final or Interlocutory for the Purpose of Appeal

Drew Vermette | 31 Emory Bankr. Dev. J. 83 (2014)

The federal courts of appeals are split over whether an order denying confirmation of a reorganization plan is final or interlocutory for the purpose of appeal. Congress and the Supreme Court have given little insight as to how to interpret “finality” within 28 U.S.C. § 158(d)(2). This uncertainty has caused courts to perform fact-intensive inquiries that focus little on text and heavily on policy. This Comment analyzes these policy arguments and offers an explanation for why a flexible interpretation should be uniformly implemented throughout the circuits. The majority of circuits interpret 28 U.S.C. § 158(d)(2) to read that the denial of a reorganization plan is an interlocutory order, and therefore, not final for the purpose of appeal. However, in the interest of judicial economy and the prevention of harm, courts should interpret orders denying confirmation of reorganization plans as final for the purpose of appeal.

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