Emory Bankruptcy Developments Journal

Volume 31Issue 1
A Tribute to David Epstein

Introduction

Gene Goldmintz | 31 Emory Bankr. Dev. J. i (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. On April 2, 2014, the Emory Bankruptcy Developments Journal presented David Epstein with the Sixteenth Annual Distinguished Service Award for Lifetime Achievement.

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Opening Remarks

Robert Schapiro | 31 Emory Bankr. Dev. J. 1 (2014)

Dean Robert Schapiro’s remarks honoring Keith Schapiro at the annual Emory Bankruptcy Developments Journal Banquet. Dean Schapiro highlighted Emory’s bankruptcy program, the 30th anniversary of the Emory Bankruptcy Developments Journal, and Keith Shapiro’s dedication to Emory Law School and role as Alumni Advisor for the Emory Bankruptcy Developments Journal.

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Acceptance Remarks

David G. Epstein | 31 Emory Bankr. Dev. J. 5 (2014)

Professor David Epstein’s acceptance remarks at the annual Emory Bankruptcy Developments Journal Banquet. Professor Epstein is the sixteenth recipient of the Annual Distinguished Service Award for Lifetime Achievement.

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Acceptance Remarks

Keith J. Shapiro | 31 Emory Bankr. Dev. J. 11 (2014)

Acceptance remarks of Keith Shapiro, alumni advisor, at the annual Emory Bankruptcy Developments Journal Banquet. Mr. Shapiro credits his time on the Emory Bankruptcy Developments Journal as the root of his other successes, including clerking for Judge Richard N. DeGunther and becoming a leader at Greenberg Traurig.

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Article

Not Just Anna Nicole Smith: Cleavage in Bankruptcy

David G. Epstein, Casey Ariail, & David M. Smith | 31 Emory Bankr. Dev. J. 15 (2014)

This is an essay about the unwarranted erosion of two basic bankruptcy principles: the cleavage effect of a debtor’s filing of a bankruptcy petition and the equality of treatment of prepetition unsecured claims. These are two of the most fundamental bankruptcy concepts. First courts and then Congress have fashioned rules favoring the prepetition unsecured claims of vendors and lessors that are inconsistent with these concepts. We explore the origins of such favored treatment, question the commonly offered policy justifications, and argue that the prepetition unsecured claims of vendors and lessors generally should be afforded the same treatment in bankruptcy as other prepetition unsecured claims.

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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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Comments

#Bankruptcy: Reconsidering “Property” to Determine the Role of Social Media in the Bankruptcy Estate

Smita Gautam | 31 Emory Bankr. Dev. J. 127 (2014)

Although social media has become a staple of modern life and a regular part of business, the legal definition of social media remains undefined. State legislatures have remained silent on the topic, but as business and individual account holders find themselves seeking bankruptcy relief, it becomes clear that treatment under the Bankruptcy Code depends on definitions that do not yet exist. The question of how social media should be characterized leaves bankruptcy courts uncertain as to whether social media accounts should be included in the bankruptcy estate. While social media encompasses aspects of property, intellectual property, and other rights, this Comment argues that social media does not fit solely into any of these categories. Instead, this Comment argues for the classification of a social media account as more similar to a personal privilege than a traditional property right. This Comment concludes that state legislatures should legally define social media to foster predictability of its role in bankruptcy proceedings.

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When an Alleged Wrong Becomes a Protected Right: Casey Anthony’s Life-story and Future Book Rights Are Property of the Bankruptcy Estate

Rachel M. Neufeld | 31 Emory Bankr. Dev. J. 147 (2014)

Casey Anthony, charged with first-degree murder of her two-year-old daughter, filed a chapter 7 bankruptcy in 2013. Absent from Ms. Anthony’s list of assets are intellectual property rights in a book that she has stated she will write based on her life-story. This Comment addresses whether a life-story and future book rights should be property of the bankruptcy estate. It relies on legal arguments based on 11 U.S.C. § 541(a), copyright law, labor theory, and the right of publicity. Practical arguments based on real-world practice and public policy, such as the entry of intellectual property into the public domain and Son of Sam statutes, are also considered. After determining that Ms. Anthony’s life-story and future book rights should be considered property of the bankruptcy estate, this Comment also argues that a market-based approach to valuation is the appropriate method to be used for assessing the value of intellectual property rights of this sort.

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Avoiding the Avoid: Re-securing the Mortgage Lender Post-BFP

Sarah Trevino | 31 Emory Bankr. Dev. J. 175 (2014)

In BFP v. Resolution Trust Corp., the Court held that the consideration received at a foreclosure sale is, in itself, reasonably equivalent value and rejected a minimum threshold amount. In its attempt to clarify the law, the Court left open the option for a bankruptcy trustee to avoid a foreclosure sale based on a lack of state law compliance. First, this Comment compares the decision in BFP and its predecessors with the legislative intent behind the various fraudulent transfer acts and § 548 of the Bankruptcy Code. Second, this Comment further proposes amending the Bankruptcy Code to require a trustee seeking avoidance of a real estate transfer to show a lack of substantial compliance with state real estate foreclosure laws and to expressly exempt foreclosure sales from § 548’s reasonably equivalent value requirement. Finally, this Comment proposes needed definitions in § 101 of the Bankruptcy Code including definitions for “reasonably equivalent value” and “real estate foreclosure sale.”

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