National Bankruptcy Review Commission
Continuation of First Organizational Meeting
Commission Members Present:
Commission Staff Present:
Jarilyn Dupont, Executive Director/General Counsel
Also Present:
Public Attending:
Vice Chairman Ginsberg (Acting Chairman in the absence of the Chairman Mike
Synar) called the meeting to order at 9:00 a.m. stating that it was an
emergency meeting and a continuation of the meeting held in Washington, D.C. on
Friday, October 20, 1995.
As the first order of business, Vice Chairman Ginsberg indicated that Chairman
Mike Synar’s statement would be made a part of the record. The statement
detailed Chairman Synar’s proposal for the work of the Commission for the
next two years in developing and implementing a workplan for the Commission.
Vice Chairman Ginsberg then moved to the first item on the agenda, the workplan
of the Commission. Professor Warren, Reporter/Advisor, joined the Commission
to assist with the workplan discussion.
Professor Warren began the discussion with reference to a memorandum provided
by Judge Jones to the Commission at the beginning of the meeting which
contained her proposal for issues and questions to be considered by the
Commission. Professor Warren suggested that for several meetings, the
Commission should be focussed on a particular broad category such as consumer
bankruptcy, or the environment and the subset issues in each category. A
decision would be made as to the particular expert speakers to invite to speak
to particular issues and provide data and whether expenses could be subsidized.
Caldwell Butler suggested that a discussion on logistics should be deferred
until later and the workplan should be the present focus.
Judge Jones discussed her memorandum and explained she believed the issues
should be explored in a discrete fashion and that the Commission should combine
meetings and hearings but that the logistics were less important. Professor
Warren agreed that one topic should be focussed on and materials and
information gathered and circulated for Members to review. She suggested that
Members might want to not lock into all of the topics too early in the process
since there may be emergent topics.
Professor Warren started with the identification of the topics and suggested
the Commission try to pick about six topics to principally focus on and then
identify one topic for which the Commission could determine subset issues.
Professor Warren began to identify the topics on the chalkboard and started
with the first big, general topic -- consumer bankruptcy. John Gose
suggested a second topic as business bankruptcies which Professor Warren
indicated might be too broad and subsets may need to be developed.
Administration of the system -- internationally and domestically -- was
suggested.
Professor Warren referred the Members to her synopsis of the discussion from
the meeting held on October 20 and distributed in the Members’ packets.
She indicated she would provide such a synopsis after each meeting to assist
with a review of the topics discussed. Babette Ceccotti and Jim Shepard stated
they wanted to keep the discussion broad or global for now and then go back to
subsets. Caldwell Butler queried why the questions raised by Judge Jones
concerning consumer bankruptcies just could not be adopted. Professor Warren
stated she did not want to lose the issues raised from the previous
discussion.
Caldwell Butler questioned whether under the topic administration the Article
III question would be raised. Topics were then identified as fitting under
administration such as jurisdiction, appeals procedure, the U.S. trustee
system, transnational insolvencies and all other.
Babette Ceccotti suggested Chapter 9 as its own category. Jim Shepard
suggested certain issues could be grouped together and others maybe not such as
labor and tax. Labor and environment were suggested as needing separate
categories. Professor Warren referred to her synopsis and indicated that there
were two issues, labor and employees, which were not necessarily the same.
Collective bargaining would be involved and pension issues.
John Gose suggested that bankruptcy law cuts across may areas such as
environmental, labor, and pensions. Environmental issues were discussed as a
major concern but whether it was a completely separate topic or combined with
another would be determined. Babette Ceccotti stated that the role of
government in general should be added and it also cut across several topics.
The regulatory function was suggested. Jim Shepard suggested tax as a topic.
Vice Chairman Ginsberg suggested the bankruptcy system as a commercial law
adjudicatory system.
Professor Warren moved back to the consumer topic and began raising subset
issues under the topic. The question of future claims, mass claims and tort
claims was raised as overlapping but also considered to be separate issues.
Babette Ceccotti suggested discharge as a subset; future claimants as an issue
under that subset; and, the ability to discharge equitable obligations.
Professor Warren suggested that discharge raises a scope question. Caldwell
Butler suggested that claims and a definition of claims should be added.
Vice Chairman Ginsberg raised the issue previously discussed at the October 20
meeting of speed and economy versus due process which introduced the question
of reducing litigation in the system. Professor Warren suggested an economy or
money litigation model. Jim Shepard suggested another big topic should be the
question of whether bankruptcy is simply a commercial forum or a forum for
resolving social ills. Professor Warren suggested that the social economic
issues constitute a big picture look at the issues to be resolved and suggested
that issues that arise in the context of bankruptcy such as the health care
crisis, and unemployment problems. Vice Chairman Ginsberg suggested if
topics are looked at in this manner, fraud and abuse are blanket problems.
Professor Warren directed the discussion back to the economy issues and asked
for more specificity such as what is the definition of fraud? Jeffrey Hartley
queried whether a definition could be provided without reference to the
specific chapters. Professor Warren agreed pointing out that there were issues
which could be called override issues that need to be raised in a number of
different contexts and with reference to different chapters.
Vice Chairman Ginsberg asked Judge Jones what she envisioned in her topic
suggestion of privatizing the bankruptcy administration system. Judge Jones
indicated she did not have a specific concept but believed it would have the
possibility of reducing administrative overhead and reducing litigation. By
using the most minimal judicial involvement the system could go faster. The
possibility of an administrative agency was not foreclosed. Jeffery Hartley
noted there have been proposals to take judges out of consumer bankruptcy thus
making it thoroughly administrative. Jim Shepard suggested one proposal was to
allow or require judges to chair § 341 hearings so that the judges
were involved at an earlier date. The issue of the Chapter 7 panel was raised.
Jim Shepard also raised the question of the public perception of bankruptcy.
Judge Jones raised the issue discussed at the October 20 meeting concerning
banking and insurance in the bankruptcy system and indicated she had heard a
number of discussions at the National Conference of Bankruptcy Judges meeting
about the proposal. While she still had misgivings about their inclusion in
the bankruptcy system, she believed these topics should be considered.
Professor Warren raised the topic of potential or future users to the
bankruptcy system, an issue raised by Jay Alix at the October 20 meeting. She
proposed that the Commission narrow the main topics down to six by grouping
certain topics and issues together. A brief discussion was held concerning
non-profits and whether they are excluded from the bankruptcy system. While
they are shielded from involuntary petitions they are not excluded from the
system.
Babette Ceccotti suggested that an appropriate area of discussion might be who
does the Bankruptcy Code allow to be a debtor and under what circumstances.
There are entities for which the situation is not entirely clear such as
benefit plans. Caldwell Butler suggested partnerships was another. Professor
Warren discussed the problems with partnership and the questions raised such as
pass through liability, what are the assets, and to whom can the discharge
extend -- all questions raised with the number of law firms going into
bankruptcy. Jim Shepard raised taxes and this was identified by the group as
an override issue.
Professor Warren proceeded to work with the Members to number the issues and
determine groupings -- not in order of importance but to clarify the potential
number of hearings. Discussion was had as to the time each of the topics would
take to review and whether more than a day should be spent on particular
issues. Suggestions also were made that a full hearing may not be possible
but that the Commission could request information and materials by putting the
word out that the Commission would like information. After discussion,
consumer bankruptcy and all other were labeled number 1. Administration was
number 2 and included the issues of Article I /Article III status, appeals,
U.S. Trustee, role of the courts, privatization and panel trustees. Labor,
employees and pensions were number 3. Banking, insurance and other regulated
industries was number 4 with future claims, discharge of claims, environmental
issues and Chapter 9. Number 5 included business bankruptcy, transnational
insolvencies, partnerships, who qualifies as a debtor. (Family Farms and
Chapter 12 were added to Number 5 later in the meeting.) Number 6 was
identified as the role of bankruptcy including issues such as public perception
of the system, fees, misuse and bankruptcy’s function in commercial law.
Override issues were identified as government, the economy, litigation issues
and taxes.
After identifying these groupings, the Commission agreed to concentrate on two
topics under which to determine subsets. Administration was the first topic
suggested by Jeffrey Hartley and . Judges. The question of Article I/Article
III was raised. Caldwell Butler suggested it is a constitutional question and
how it has been articulated by the Supreme Court was an issue. Vice Chairman
Ginsberg queried what are the lingering constitutional questions since the 1984
compromise. Professor Warren identified it as a cost question -- has a
complex structure been built as opposed to a cheap structure. Babette Ceccotti
suggested appeals and questioned whether it is a sensible system. Judge Jones
stated that the answer was clear and it is not a sensible system and that the
question is what is a sensible system for the purpose of stare decisis and
minimizing costs and delay. Discussion continued and the issues of abstention
and finality were raised. Jeffrey Hartley wanted to know if the Commission was
willing to admit the appeals process is broken and it needed fixing as this
would be a big step to take. Judge Jones suggested the issue of venue.
Professor Warren noted two issues with respect to venue -- venue as related to
corporate bankruptcies and the problem of individuals having to file in
courthouses 200 miles away even if another court was closer. Corporate venue
involved the problem of forum shopping.
Jim Shepard mentioned fees and the amount generated to support the system as
opposed to taxpayer support of the system. Jeffery Hartley raised the issue of
the tension between the Chapter 13 trustees and the system itself. Professor
Warren requested more specific concerns and micro-management was suggested as
the problem. Jim Shepard suggested the Chapter 13 model was the issue and
their status. Vice Chairman Ginsberg suggested user fees as an issue. The in
forma pauperis pilot study was mentioned as a subset of user fees. Attorneys
fees and conflicts were raised although they also would be a business
bankruptcy issue. Jim Shepard suggested administrative expenses. Professor
Warren raised the question of the creditor committees and whether these are a
part of the system that is working and do they cut down collective costs. It
was suggested that data could be obtained from the Office of the U.S. Trustee
Executive Director, Jerry Patchan, on several of these matters.
The discussion then moved on to the second large topic area and it was agreed
that consumer bankruptcy would be considered second. Professor Warren referred
back to her synopsis and pointed out three types of problems identified in the
previous meeting. The first was the variability of the system and the
differences produced among debtors because of local implementation of the
consumer bankruptcy system. The second was access to the system and the cost
to creditors to participate and the issue of in forma pauperis. The third
problem area was that of fraud which included debtors giving false names, false
addresses, lack of truthfulness about the assets and serial filings.
Jim Shepard suggested a major issue would be dischargeability. Focussing in on
what is exactly the problem, Vice Chairman Ginsberg suggested that there should
be a review of how and why the number of dischargeable items increased from six
in 1978 to the present 15. Jim Shepard suggested the broad question of how
much tax relief existed in bankruptcy. Professor Warren asked what was needed
to determine the issue -- was it data and was it available. This was
considered to be a potential problem but it needed to be explored.
Jeffrey Hartley said a primary inquiry ought to be why individuals were
choosing bankruptcy. Unemployment, marital problems, health care, tax problems
-- all were cited. The issues of super discharge and dischargeability could be
explored. Vice Chairman Ginsberg suggested that once you get into those
issues, do you decided if you channel people into Chapter 13 or Chapter 7.
John Gose suggested exemptions as an issue. Professor Warren requested that
the Members narrow the issues -- what types of issues under exemptions and
discharge. Caldwell Butler suggested the issue was one of uniformity.
Professor Warren questioned whether tops and bottoms should be established to
create uniformity.
Judge Jones raised the question of whether there should be automatic discharge
or should there be a reversal of the burden of proof on discharge -- the debtor
ought to prove entitlement to discharge instead of granting unless a creditor
objects. She also raised the same question concerning the automatic stay. A
brief discussion ensued concerning the history of the burden on the debtor to
prove discharge. Caldwell Butler raised the question of preferences noted by
Judge Jones in her memo. A discussion concluded that preferences should be
considered a business bankruptcy issue and not consumer.
Jeffrey Hartley questioned the focus of the discussion. He raised concerns
with the fact that under consumer bankruptcies there were a number of ways to
approach the issue, Chapter 7's have assets and no assets, Chapter 13s can be
completely different. There are differences in the dischargeability questions
and the good faith filing.
Professor Warren noted that the problems previously identified and as noted in
her synopsis were all included in the discussion. John Gose raised the issue
of mortgage interests and the interests of credit card lenders, other consumer
lenders and taxing authorities. The question was -- are they satisfied with
the present administration? Professor Warren suggested that there is data,
both public and from private groups such as the National Association of Credit
Managers, the credit card companies and creditor bankruptcy services which
might be obtained to assist in the discussion.
Jim Shepard raised a question of whether the Commission should try to define a
no-asset case as there are cases in which there is an attempt to shift the tax
burden. Judge Jones mentioned a report from the Federal Judicial Center
concerning the percentage of Chapter 13 filings that end in dismissals and
whether that was an indictment of the system. Vice Chairman Ginsberg suggested
it might be a commendation of the system since in a lot of cases problems are
able to be worked out allowing the dismissal of the Chapter 13 filing and a
solution to the debtor’s problem. Professor Warren agreed it was an issue
worth exploring and it was worth determining what information was available.
The Association of Chapter 13 Trustees were mentioned as a possible source of
data.
A discussion then ensued with respect to Chapter 12 with Executive Director
Dupont noting that it had not been included in the broad areas and perhaps it
should be included under other. It was agreed that it would be included
under Number 5. It also was mentioned that when Chapter 12 was enacted, there
was an increase in the negotiations to work out the farm debt problems. Vice
Chairman Ginsberg noted that one thing that has happened is that with Chapter
12 and the increased debt limits for Chapter 13, business issues are creeping
into consumer issues. Professor Warren noted that there is a suggestion based
on the data that one in five Chapter 13s may be a business filing instead of a
consumer filing.
Judge Jones raised the issue of valuation in consumer bankruptcies and noted
that it would be worthwhile to identify the sections that lead to the most
litigation. Vice Chairman Ginsberg and Professor Warren indicated that it
already has been identified as dischargeability. Jeffrey Hartley noted that
valuation litigation is picking up and there was a question of when the
valuation should occur. Professor Warren noted that in comparison to business
valuation, the assets in consumer bankruptcy are usually cars and house, which
are the easiest things to value. The lien stripping issue and the Supreme
Court opinion of Dewsnup was briefly discussed and whether mortgage strip down
should be reviewed.
A brief discussion was held concerning the distribution of a synopsis of the
meeting and the minutes. Professor Warren indicated that she would again do a
synopsis and would work with Executive Director Dupont to ensure the
completeness of the synopsis and coordinate the distribution. Executive
Director Dupont noted that minutes would be prepared and sent out in addition
to the synopsis. A discussion was held concerning the information to be
provided to the Members and a discussion as to the speakers to invite for the
hearing. The use of e-mail and distribution of information was discussed.
A recess was called and the meeting resumed after a ten minute break.
Vice Chairman Ginsberg requested that a brief discussion be conducted on the
afternoon public hearing. Executive Director Dupont explained the logistics of
the public hearing including location and procedure.
Vice Chairman moved to the next item on the agenda, consideration of the
Commission budget. Caldwell Butler made a motion to adopt the budget proposal
labeled as budget plan 12 in the Members’ packet (a budget with 2 staff
persons and 14 Commission meetings). Judge Jones seconded the motion and a
discussion followed on the budget.
Vice Chairman Ginsberg indicated that he believed additional information should
be related to the Commission. He related that the National Conference of
Bankruptcy Judges had offered to sponsor another meeting of the Commission at
the convention in 1996 in San Diego and possibly a third meeting at the end of
the Commission’s life in 1997 as a wrap-up. This type of assistance would
free up money to allow the Executive Director to have additional staff. Vice
Chairman Ginsberg discussed the amount of work involved and asked Executive
Director Dupont to speak to the issue. Executive Director Dupont explained
that she believed the integrity of the Commission depended on additional
substantive assistance given the amount of work required. Reference was made
to the previous Commission which had over 21 meetings but had 14 staff persons,
many of whom were professionals, to assist with those meetings.
John Gose queried whether this matter could be deferred and the Commission
amend the budget as it goes along in the process. He stated he was bothered by
the amount of money available to the Commission. Vice Chairman Ginsberg stated
he felt the original budget proposal had taken a very conservative approach and
that it was not possible to have a Commission with only one professional,
attorney staff person. Judge Jones suggested that the Commission could
accomplish the same thing by dividing up the responsibilities among the
Members. She indicated she could provide a law clerk to do footwork and John
Gose had an associate to do footwork. Her secretaries could assist with
scheduling and putting out Federal Register notices. She stated that by
dividing up the responsibilities, the Commission would find that it is not as
big a task. She suggested that the decision should be deferred since by
agreeing to hire additional staff meant that two-thirds of the Commission
budget would be for staff.
Vice Chairman Ginsberg noted that the Commission could devote a larger amount
to staff because other expenses could be reduced by using other resources and
noted that emergency matters could not be handled by the Executive Director by
getting on the phone to try and find a Commission Member. Judge Jones stated
that any one of the Commission Members was as competent to act on behalf of the
Commission as was the Executive Director and suggested the money should be
saved for the time being. Vice Chairman Ginsberg stated that if deferred a
person would then come on who had not been on from the beginning and would do a
better job if hired now.
Babette Ceccotti stated she agreed with Vice Chairman Ginsberg and she had
assumed that the persons identified by the Members available for use would be
put to full use. She stated she did not assume that would mean one less staff
person and that the real substantive issues required more than the Executive
Director and the Reporter. In order to have high caliber deliberations,
discussions and a final report, staff should not skimped on by the Commission.
Professor Warren stated that she wanted to remind the Commission that her role
was part-time for the Commission and the prior workplan discussion should
provide a view of the amount of research and work that needed to be done.
Judge Jones commented that by hiring another staff person the funds come
directly out of the opportunity for the Commission to meet together and that
the morning’s presentation demonstrated that each Member had some
knowledge and it was the Commission’s decision that would govern the
report. Vice Chairman Ginsberg agreed that meetings were informative but that
with other groups helping with the burden of paying the expenses of meetings,
funds would be free for an additional staff person. Judge Jones noted that even
under the budget plan 12, the number of meetings would be 14. Vice Chairman
Ginsberg indicated it could be more and indicated that Jay Alix could speak to
the issue. Judge Jones stated that the number of meetings needed were at least
24. Vice Chairman Ginsberg suggested that another option was to go back for
the rest of the Commission’s funding.
Jay Alix provided a work flow analysis of the Commission’s meetings and
the required staff work to support the meetings. With seven meetings, about
one a quarter, the staff would have a month and a half to clean up and a
month and a half to get ready for the next meeting. With 14 meetings, the time
would be about one month. The use of volunteers would require coordination,
arranging testimony, coordination of research with the consultant. He stated
resources had to be balanced. Judge Jones stated she believed the tasks could
be divided up. Vice Chairman Ginsberg indicated some of these tasks could not
be done outside of Washington. John Gose proposed that if the more funds were
arranged the budget could be re-examined again in three months.
Additional discussion followed on the amount of work, the amount of
coordination, and the need for staff. Jay Alix stated that he believed that
staff spread around the country could not be as effective as staff working in
one office, even with electronic communications. He also stated that he did
not want to personally take on any more burden of the Commission beside being a
Commissioner. Calvin Snowden, liaison from the General Services
Administration, was asked about his experience with other commissions and
staffing patterns. He indicated comparable commissions have three to five
staff but generally three and also use volunteers and outside resources to
supplement the budget. He stated that substantive issues and administration of
a Commission should not be parceled out of the office. He pointed out that
gifts and donations could be obtained. Jim Shepard indicated that the work
might be administerial now but would shift to substantive work particularly the
work with the Reporter.
Jeffrey Hartley stated that Jerry O’Donnell of the Chapter 13 trustees
have an annual meeting around the 4th of July and intended to invite the
Commission to an all expenses paid meeting and there would probably be other
groups. He then inquired whether the base salary of the position, $65,000,
could be lowered and the Commission use budget plan 9. Executive Director
Dupont explained the considerations taken into account in determining the
salary level given the experience and abilities of the deputy counsel needed
Jim Shepard inquired as to whether the issue could be deferred and Vice
Chairman Ginsberg indicated the matter had to be resolved. John Gose asked
that the question be called. Jay Alix pointed out that the total pot of money
was the same and the difference was over about $125,000. He believed that this
amount could be obtained and the gap in the budget could be narrowed. Judge
Jones questioned the Commission relying on others and such offers, if accepted,
would mean that the Commission Members would have to participate in the
group’s meeting. She stated that there may be a serious appearance
problem. Discussion followed with questions as to the interests of bankruptcy
judges and the impact on the Members on the Commission.
John Gose asked that the question be called and Vice Chairman Ginsberg called
for a vote on the motion to adopt the budget plan 12. A vote was held with 3
in favor, 4 against and one abstention. The motion failed.
Caldwell Butler made a motion to adopt budget plan 9 with a reduction in the
salary of the deputy counsel to $40,000. A discussion was held concerning the
ability to get a qualified person. He also queried whether the Commission
would be consulted on the individual hired. Executive Director Dupont
explained that would be a decision made by the Chairman. Vice Chairman
Ginsberg indicated that if he were involved he would circulate the resume of
the person he believed most qualified before an offer was made to that person.
Additional discussion was held on the salary typically offered an attorney in
the federal government and the grade level and issues of locality pay. After
discussion, the motion was amended to set the hire at no lower than a GS-11,
not to exceed $40,000. Additional discussion was held on the fact that the
budget plan did state 12 meetings but the budget was always subject to
readjustment. The question was called and a vote was held. The motion passed unanimously.
Vice Chairman Ginsberg moved to the next item on the agenda for discussion, the
timeline for the Commission. After a question from Judge Jones and a brief
discussion, the Commission was informed that the bylaws and consultant’s
contract were being revised as had been requested at the previous meeting and
would be available before the next meeting.
A discussion was held among the Members as to the appropriate and available
date for a meeting and the advantage of blocking off particular dates even if
no meeting was called. Mondays were suggested and rejected as were Thursdays
until the teaching responsibilities of Jim Shepard were concluded in May. The
third Friday of each month was reserved for meetings until after May. Judge
Jones objected to the timeline suggesting that meetings needed to be held
sooner, however, she did believe that a lot of data need to be gather before
meetings were held. Babette Ceccotti questioned whether the meetings also
would include individuals to speak to the Members on particular issues. It was
agreed that this would be the format and February was determined to be the most
realistic time to proceed. Further discussion concluded that the meeting would
be held on the fourth Friday in February -- February 23, 1996.
Vice Chairman Ginsberg requested that the Members provide input to the
Executive Director and Reporter on the substantive discussion with questions
and comments. Professor Warren requested that the memos not take the form of
position papers so that Members’ positions were not laid out before the
hearings in which information would be provided to learn bout the issues. It
was agreed that these would be outlines and questions.
A brief discussion was had concerning the prior meeting and whether any action
had been taken on the charter or the bylaws. A question also was raised as to
the ability of the Executive Director to comply with the Federal Register
notice requirement providing a boilerplate notice as to meetings on the third
Friday. It was explained that such notices have to be specific as to time,
place and agenda. The timing of the meetings was raised again and Professor
Warren stated in response to a question on preparation time that each meeting
should have a couple of months time to gather information and data with some
overlap in meeting time. The third Friday in April, April 19, was proposed for
the second meeting and June 20 and 21 for the third meeting.
Jay Alix suggested that to determine the issues the Commission needed to
address, consideration had to be given to the goal. One goal is to reduce the
costs and delay of bankruptcy. One cause of delay and costs is litigation. If
this could be reduced, the goal would be accomplished. He suggested that he
would like to survey which topics are most litigated. A discussion ensued as
to how to gather such data and whether it was possible to design such a system.
Professor Warren noted that there are no such databases even at the Federal
Judicial Center, which has offered assistance. Jim Shepard noted that former
Dean Marjorie Girth at the University of Georgia Law School may have time
available to volunteer. Professor Warren noted that to provide a valid study
on business bankruptcies, 23 districts had to be studied. Jay Alix suggested
there may be groups willing to fund data studies. Caldwell Butler indicated
that he had would work on contacting people in Congress to help in obtaining
more money for the Commission. He also requested that a filing and indexing
system be developed so that the Commission and the Members would be in sync.
It was explained that this would occur as soon as the Commission obtained its
computers.
The meeting was adjourned at 12:08 p.m.
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