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Bankruptcy Law

Wellness International Network v. Sharif - Post-Decision SCOTUScast

SCOTUScast 6-22-15 featuring Thomas Plank.
Thomas Plank June 22, 2015

On May 26, 2015, the Supreme Court delivered its opinion in Wellness International Network, Limited v. Sharif.  This case relates to the Court’s 2011 decision in Stern v. Marshall, in which the Court held that Congress violated Article III by authorizing bankruptcy judges to decide certain claims for which litigants are constitutionally entitled to an Article III adjudication. Here the question is whether Article III allows bankruptcy judges to adjudicate such claims with the parties’ consent. 

In an opinion delivered by Justice Sotomayor, the Court held by a vote of 6-3 that Article III permits bankruptcy judges to adjudicate Stern claims with the parties’ knowing and voluntary consent. The judgment of the Seventh Circuit was reversed and the case was remanded. 

Justice Sotomayor’s opinion was joined by Justices Kennedy, Ginsburg, Breyer, and Kagan, and by Justice Alito in part.  Justice Alito filed an opinion concurring in part and concurring in the judgment. The Chief Justice filed a dissenting opinion, joined by Justice Scalia and by Justice Thomas as to Part I.  Justice Thomas also filed a dissenting opinion. 

To discuss the case, we have Thomas Plank, who is the Joel A. Katz Distinguished Professor of Law at the University of Tennessee College of Law.

Harris v. Viegelahn and Bullard v. Hyde Park Savings Bank - 6-2-15

Post-Decision SCOTUScast featuring Zvi Rosen
Zvi Rosen June 02, 2015

The Supreme Court recently issued two unanimous decisions in bankruptcy cases, Harris v. Viegelahn and Bullard v. Hyde Park Savings Bank

Harris v. Viegelahn, decided on May 18, involved the conversion of a Chapter 13 bankruptcy case into a Chapter 7 bankruptcy case. In Chapter 13 bankruptcy, the debtor is permitted to keep his assets but his postpetition wages are property of the bankruptcy estate and may be distributed to creditors. In Chapter 7 bankruptcy, the debtor’s assets are immediately liquidated and made available to creditors--but postpetition wages remain the debtor’s. The question in this case was whether, upon conversion from Chapter 13 to Chapter 7, postpetition wages still in the hands of the Chapter 13 trustee remain available to creditors, or must instead be returned to the debtor. In an opinion delivered delivered by Justice Ginsburg, the Court held unanimously that the debtor was entitled to the return of any postpetition wages not yet distributed by the Chapter 13 trustee.  The contrary judgment of the Fifth Circuit was reversed and the case remanded.

Bullard v. Hyde Park Savings Bank, decided on May 4, concerned whether a debtor could appeal a bankruptcy court's order denying confirmation of the debtor's proposed repayment plan. In an opinion delivered by Chief Justice Roberts, the Court held unanimously that the order denying confirmation was not a final order subject to immediate appeal.  The judgment of the First Circuit, which had dismissed the debtor’s appeal for lack of jurisdiction, was affirmed.

To discuss these cases, we have Zvi Rosen, who is a Visiting Assistant Professor of Law at the Hofstra University Maurice A. Deane School of Law.

Wellness Int'l Network, Ltd. v. Sharif - Post-Argument SCOTUScast

SCOTUScast 3-4-15 featuring Thomas Plank
Thomas Plank March 04, 2015

On January 14, 2015, the Supreme Court heard oral argument in Wellness Int’l Network, Limited v. Sharif, which presents two questions. The first is whether a bankruptcy court has power under Article I of the Constitution to determine, where an issue of state property law is involved, that property in the debtor’s possession belongs to the bankruptcy estate.  The second question is whether, notwithstanding the limits of Article I authority, the consent of litigants can permit a bankruptcy court to exercise Article III judicial power--and if so, whether a litigant's continued participation in litigation can constitute implied consent.

To discuss the case, we have Thomas Plank, who is the Joel A. Katz Distinguished Professor of Law at the University of Tennessee College of Law.

Single Point of Entry – A Response to Paul Kupiec and Peter Wallison - Podcast

Financial Services & E-Commerce Practice Group Podcast
Randall Guynn, David Skeel, James Wigand February 18, 2015

In December 2013, the Federal Deposit Insurance Corporation (FDIC) released a proposal on the “Single Point of Entry” (SPOE) strategy as a means of resolving large failing banks without financial-market disruption. Paul Kupiec and Peter Wallison wrote a paper strongly critiquing the strategy, and presented it to Federalist Society members on a January 22 Teleforum conference call. A recording of their presentation is available here. Randall Guynn, Prof. David Skeel, and James Wigand offered their defense of SPOE and their response to Mr. Kupiec and Mr. Wallison on a Teleforum conference call.

  • Randall Guynn, Partner, Davis Polk & Wardwell LLP
  • Prof. David Skeel, S. Samuel Arsht Professor of Corporate Law, University of Pennsylvania Law School
  • James Wigand, Partner, Millstein & Co.

Credit to Cronies: Government’s Heavy—IF Hidden—Hand - Event Video

2014 National Lawyers Convention
Edward J. DeMarco, Bert Ely, Paul H. Kupiec, Paul S. Atkins, Wayne A. Abernathy November 17, 2014

Key to a vibrant and increasingly productive economy is an efficient credit allocation process -- the mechanism by which all forms of credit, and not just bank loans, flow to those who can make the best use of that credit.  Do  government regulations influence and therefore distort – intentionally or not – the allocation of credit within the U.S. economy?

Bank capital and liquidity standards, consumer lending requirements, lending rules enforced by the Consumer Bureau, the Community Reinvestment Act, and government-sponsored enterprises (notably Fannie Mae, Freddie Mac, and the Farm Credit System) among other federal programs steer credit to favorites based on government priorities.  Designating large financial firms as “systemically important financial institutions” might diminish their role as independent credit providers and subject them to further government direction.   Some argue that Federal Reserve monetary policy, which greatly influences all interest rates, has consequent credit-allocation effects.  Where did this all come from, where is it going, and what it means for the future of the economy will be questions for the panel.

The Federalist Society's Corporations, Securities & Financial Services & E-Commerce Practice Group presented this panel on "Credit to Cronies: Government’s Heavy—IF Hidden—Hand" on Friday, November 14, during the 2014 National Lawyers Convention.

Featuring:

  • Mr. Edward J. DeMarco, Senior Fellow-in-Residence, Milken Institute
  • Mr. Bert Ely, Principal, Ely & Company, Inc.
  • Dr. Paul H. Kupiec, Resident Scholar, American Enterprise Institute
  • Moderator: Hon. Paul S. Atkins, Patomak Global Partners LLC; former Commissioner, U.S Securities & Exchange
  • Introduction: Hon. Wayne A. Abernathy, Executive VP for Financial Institutions Policy and Regulatory Affairs, American Bankers Association; and Chairman, Financial Services & E-Commerce Practice Group

Mayflower Hotel
Washington, DC