Emory Bankruptcy Developments Journal

Volume 30Issue 1
EBDJ
Introduction: A Tribute to Richard Levin

Alexander F. Clamon, Editor-in-Chief | 30 Emory BDJ. 1 (2014)

Each year, the Emory Bankruptcy Developments Journal honors an individual who has made a significant impact on the field of bankruptcy law with the Distinguished Service Award for Lifetime Achievement. Past recipients of the Distinguished Service Award include The Honorable William L. Norton, Jr. (1999); Kenneth N. Klee (2000); Frank R. Kennedy (2001); Harvey R. Miller (2002); The Honorable David H. Coar (2003); Gerald K. Smith (2004); The Honorable Conrad B. Duberstein (2005); Senator Dennis W. DeConcini (2006); The Honorable W. Homer Drake, Jr. (2007); Douglas G. Baird (2008); Elizabeth Warren (2009); Barry W. Ridings (2010); Tony Alvarez II and Bryan Marsal (2011); and Justice Geoffrey B. Morawetz (2012). On April 10, 2013, we presented Richard Levin with the Fifteenth Annual Distinguished Service Award for Lifetime Achievement.

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Tribute

The Honorable Eugene R. Wedoff | 30 Emory BDJ. 1 (2014)

I'm honored to introduce Richard Levin on a special occasion. Tonight, the Emory Bankruptcy Developments Journal is conferring on Rich its Distinguished Service Award for Lifetime Achievement. This is the fifteenth time that the award has been given, each time to an individual who has had both large and positive effects on the ways in which debt is treated. Although the award was initially given to U.S. lawyers, judges, and law professors, the Journal's recent awards have recognized the increasingly international nature of commercial activity and the effectiveness of business acumen as well as legal skill in treating debt. And so it has conferred its Distinguished Service Award on leaders in accounting and management services, and, most recently, on a prominent Canadian jurist.

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Why Bankruptcy?

Richard Levin | 30 Emory BDJ. 1 (2014)

Thank you for this impressive award, impressive because of the Bankruptcy Hall of Fame luminaries who have previously received it, people who have had a lasting impact on bankruptcy law and practice: Harvey Miller, Professor Frank Kennedy, Judge William Norton, Professor Kenneth Klee, Senator Dennis DeConcini, and Professor, now Senator, Elizabeth Warren, among others. I'm honored to be in their presence, let alone in their company.

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Articles

Hey, the Sun is Hot and the Water's Fine: Why Not Strip Off That Lien?

Lawrence Ponoroff | 30 Emory BDJ. 1 (2014)

In this article, the author maintains that avoidance of wholly unsecured liens ("strip off") in chapter 7 is permissible and desirable notwithstanding the Supreme Court's controversial 1992 decision in Dewsnup v. Timm, which refused to permit avoidance of the unsecured portion of a partially secured lien ("strip down"). The argument flows from a broader analysis of the proper characterization of secured claims in bankruptcy. Specifically, contrary to the state law ideation of "secured" that focuses on the identity of the claimant, the author urges that in bankruptcy the concept of "secured" should focus on that creditor's claim or claims as defined by the Bankruptcy Code. He argues not only that bankruptcy courts have the authority to develop a uniform federal rule in this area, but that to do so would limit Dewsnup to its narrowest possible construction, and perhaps provide the impetus for reexamination of a decision that is out-of-step with core bankruptcy policy and the Court's own bankruptcy jurisprudence.

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Maneuvering in the Shadows of the Bankruptcy Code: How to Invest in or Take Over Bankrupt Companies within the Limits of the Bankruptcy Code

Sam Roberge | 30 Emory BDJ. 1 (2014)

Profiting off of bankrupt companies? Sounds impossible. It is not-and this Article explains how to do it. When a company declares bankruptcy, all levels of its capital structure are for sale. Investors have two alternatives: (1) purchase these "claims" against the company at a discount, and turn them into profitable investments once the company exits bankruptcy; or (2) take over the bankrupt entity, in a bankruptcy version of a hostile takeover.

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Comments

Medical Marijuana Dispensaries in Chapter 11 Bankruptcy

Vivian Cheng | 30 Emory BDJ. 1 (2014)

Since California passed the Compassionate Use Act of 1996, the interaction between state and federal medical marijuana laws have been a subject of frequent legal debate. But few have considered whether state-compliant medical marijuana dispensaries may seek assistance from the bankruptcy system. Two dispensaries recently tested their ability to reorganize under chapter 11 of the Bankruptcy Code, but the cases were quickly dismissed. The U.S. Trustees argued that the debtors' business activities constituted "cause" to dismiss, lack of good faith in filing, and a "means forbidden by law," and left the debtor with little reasonable chance of success.

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Student-Loan Discharge - An Empirical Study of the Undue Hardship Provision of § 523(a)(8) Under Appellate Review

Ryan Freeman | 30 Emory BDJ. 1 (2014)

Prior to the enactment of the Bankruptcy Code, student-loan debtors could receive an automatic discharge of their debts in bankruptcy. Now, they cannot. Since the Code's enactment, Congress has pursued progressively harsher standards, continually narrowing the scope of when a student-loan debtor could obtain discharge. Following the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act in 2005, student-loan debtors now encounter the toughest obstacles to discharge they have ever faced. By extending the protection of the discharge exception of 11 U.S.C. § 523(a)(8) to private lenders, Congress effectively placed all students who take out loans to pay for their education at the mercy of a harsh system whose narrow exceptions for discharge force debtors to prove that they face a "certainty of hopelessness" in their future.

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Considering Which Labor Terms a Debtor May Impose on its Union After Rejecting a Collective Bargaining Agreement Under § 1113

Jacob L. Kaplan | 30 Emory BDJ. 1 (2014)

Section 1113 of the Bankruptcy Code provides courts with a comprehensive set of criteria for determining when chapter 11 debtors can reject collective bargaining agreements during bankruptcy. When courts approve rejection, however, § 1113 and the rest of the Code are silent about which labor terms debtors may unilaterally impose on their unions. On the rare occasions when courts and the National Labor Relations Board have addressed this issue, they have followed one of two approaches. The first approach limits debtors to imposing only labor terms found in their "last, best offer" to unions before filing a § 1113 motion. The second approach, however, permits debtors to impose any labor terms found in any pre-§ 1113 proposals, subject to court approval.

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Avoiding the Inequities Created by In re Delco Oil, Inc.-The Need for An Innocent Vendor Exception

Juan Mendoza | 30 Emory BDJ. 1 (2014)

In In re Delco Oil, Inc., the Eleventh Circuit addressed whether a chapter 7 trustee can avoid a debtor's unauthorized transfer of cash collateral to a vendor that transacts in good faith and for equivalent value. The Eleventh Circuit strictly interpreted 11 U.S.C. §§ 549 and 550 by holding that the trustee has the power to avoid such a transfer. This decision is problematic for two reasons. First, the innocent vendor had to forfeit the goods that it transferred and any cash collateral received in exchange. Second, the decision created an absurd result by preventing the innocent vendor from obtaining an administrative expense claim even though it conferred a benefit on the estate. This decision effectively prevents an innocent vendor from receiving any compensation for the sale of its goods.

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