Emory Bankruptcy Developments Journal

Volume 35Issue 2
The Sixteenth Annual Emory Bankruptcy Developments Journal Symposium

Student Loan Discharge: Reevaluating Undue Hardship Under a Presumption of Consistent Usage

Ashley M. Bykerk | 35 Emory Bankr. Dev. J. 509 (2019)

An increasing number of Americans are suffering from financial distress caused by educational debt. Some of those individuals seek relief from that distress through the bankruptcy system, where they must establish that repaying their educational debt would impose an undue hardship in order to obtain a discharge of such debt. The author focuses on § 523(a)(8) of the U.S. Bankruptcy Code, which sets forth educational debt as an exception to bankruptcy discharge unless the repayment of student loan obligations imposes an “undue hardship.” The author concludes that the primary inquiry into a debtor’s undue hardship claim must focus on the debtor’s current financial circumstances without undue regard to pre-bankruptcy conduct or assurance of persisting financial distress.

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Unbalanced Bargaining: Trump Entertainment Resorts Unite Here Local 54 and Expired Collective Bargaining Agreements Under § 1113

Adam E. Ekbom | 35 Emory Bankr. Dev. J. 547 (2019)

The author explores Trump Entertainment Resorts Unite Here Local 54, in which the Third Circuit considered, as an issue of first impression, whether a chapter 11 debtor-employer is able to reject the continuing terms and conditions of an expired collective bargaining agreement with its unionized employees under 11 U.S.C. § 1113. After analyzing this decision, the author argues that expired collective bargaining agreements are not subject to rejection or modification through § 1113. The author concludes by providing recommendations for judges, debtor-employers, and unions that attempt to balance the conflicting policy concerns surround bankruptcy and collective bargaining agreements.

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Rogue Committees or Rogue Judges: The Limits of a Bankruptcy Judge’s Authority to Disband Chapter 11 Committees

Mark D. Gensburg | 35 Emory Bankr. Dev. J. 601 (2019)

When confronted with a misbehaving chapter 11 committee, bankruptcy courts have a limited list of remedies available to preserve equity. Universally, courts may address committee misbehavior through the disallowance of the committee’s attorneys’ fees, or through a modification of the committee’s membership. Where these remedies are inadequate, a split has emerged amongst the courts as to whether bankruptcy judges have the authority to use the “judicial hammer” of disbanding a misbehaving committee. Looking to the history of chapter 11 committees and present-day examples of committee misbehavior, the author argues that when a committee is engaged in severe misfeasance or malfeasance, bankruptcy judges must have the power to disband the committee.

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A Fly in the Ointment: PROMESA’s Drafting Error in Section 314(b)(7)

Christine J. Joh | 35 Emory Bankr. Dev. J. 645 (2019)

When Congress amended the Bankruptcy Code in 1984, Congress precluded Puerto Rico from seeking bankruptcy relief under chapter 9. The author explores the history of this exclusion, the case Puerto Rico v. Franklin California Tax-Free Trust, and § 314(b)(7) of the Puerto Rico Oversight Management and Economic Stability Act. The author then concludes that § 314(b)(7) should be removed to resolve the dysfunction it creates.

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