Jurisdiction: Art I v Art III
| ID | Name | Group | Other | Code
Sec |
Cross
Ref | Problem
Referenced | Proposed
Solutions |
NBRC-
0007 | Leon S. Foreman | Scholar-in-Residence
- American College of Bankruptcy - Selective Professional Association of
7, 13 & 11 Attys; Accts; Professors; Judges * Gov't Officials
(Approx. 300 Fellows). |
| 28 U.S.C. §
157(b) |
| Bankruptcy Courts, as Article I Courts do not function very
efficiently. Core/Non-Core distinction is
unworkable. | Give Bankruptcy Courts Art. III
status. Legislation should resolve critical issues for a smooth
transition. |
NBRC-
0154 | Roderic L. Notzon | Attorney and
bankruptcy court clerk |
|
|
| Art. I courts are based on a
false premise. Adjunct status increases cost and delay. Numerous
procedural difficulties are attributable to adjunct status: core/noncore
disputes; withdrawal; jury trial authority; contempt power; extra level
of appeal. | Bankr. Ct. can either be
streamlined as an adjunct or restructured as an Article III court.
Streamlining should include contempt power; personal injury
jurisdiction; eliminate mandatory withdrawal and permit bankruptcy court
to make a report and recommendation as to discretionary withdrawal,
overruling Rule 5011(a). In the best case, the bankruptcy court would
be an Article III court -- would be the most effective way to streamline
the court. Art. III status would actually costs less that current
system. Mandatory abstention could also be done away with. |
NBRC-
0203 | Amy M. Tonti, on behalf of the Allegheny Co. Bar Assoc.'s
Bankruptcy & Commericial Law Section | Chair, Allegheny County Bar Assoc. (ACBA), Bankruptcy and
Commerical Law Section | Summary of ACBA's
recommendations |
|
| Bankruptcy judges should be
given Article III status. | Supports changing
the status of Bankruptcy Judges from Article I to Article III
judges. |
NBRC-
0223 | Frank R. Kennedy | Professor, Michigan
Law School; former Executive Director, Commission on the Bankruptcy Laws
of the United States (1973) | Cover letter
discussing various areas of concern |
|
| Author provides a list of 30 "Topics for Consideration by
Commission on Bankruptcy Laws." The recommended topic relating to
partnerships is:
Revision of provisions governing partnerships and limited liability
companies. | None. |
NBRC-
0301 | National Bankruptcy Conference | National Bankruptcy Conference (NBC), Bernard Shapiro -
Chair |
|
|
| National Bankruptcy
Conference believes that the following issue merits study by the NBRC:
whether bankruptcy judges should be given Article III
status. | NBC believes that bankruptcy judges
should be given Article III status in order to decrease the amount of
judicical time spent deciding which courts can decide which lawsuits.
Also, the Bankruptcy Code should be amended to make clear that all
matters relating to the bankruptcy case may be decided in the bankruptcy
court. This proposal does not suggest that those currently serving as
bankruptcy judges automatically be given Article III status. |
NBRC-
0301 |
National Bankruptcy Conference |
National Bankruptcy Conference (NBC), Bernard Shapiro -
Chair |
|
|
|
National Bankruptcy Conference believes that the
following issue merits study by the NBRC: whether the law of
partnerships should be "totally reconsidered." |
NBC concludes that partnership law should be
"reconsidered." (No additional details are provided. The NBC
Report, however, which discusses this position more thoroughly, has been
"refined" and will be available to the NBRC.) |
NBRC-
0303 | Commercial Law League of America | Commercial Law League of America (CLLA) |
|
|
| The Commerical Law League of
America believes that the following issue should be considered by the
NBRC: whether bankruptcy judges should receive Article II status. The
CLLA believes that this issue is a non-priority. Article III status is
really a political issue regardless of the probably very valid rationale
developed by the NBRC to support conferring Article III
status. | Article III status is a political
hot potato, and debate over this issue would not be a good investment of
the NBRC's limited resources. |
NBRC-
0303 | Commercial Law League of America | Commercial Law League of America (CLLA) |
|
|
|
The Commerical Law League of America believes that the
following partnership issues should be considered by the NBRC:
1) Is a partnership agreement an executory contract (CLLA believes
this issues should receive high priority; no additional details are
provided)
2) Does the trustee exercise the rights of partners who are debtors or
are those rights reserved to the debtor ("high priority"
issue).
3) Are clauses automatically converting a general partner's interest
to a limited partnership enforceable in bankruptcy Are clauses
compelling the sale of the bankrupt partner's interest enforceable
("high priority" issue)
4) Under what circumstances may the bankrupt court stay creditor
actions against non-debtor partners for their liability for partnership
debts Are there differences during the pendency of the case and after a
plan is confirmed and the case is closed ("high priority"
issue)
5) Should the bankruptcy court have the power to prohibit general
partners of the bankruptcy partnership from transferring non-partnership
assets during the pendency of the case ("high priority" issue)
6) Should the bankruptcy court have the power to compel non-debtor
general partners to disclose information about their financial condition
Should this information be sealed ("high priority" issue)
7) What rights should the chapter 7 trustee have against general
partners What rights should the chapter 11 estate have against the
partners ("high priority" issue)
8) Should non-partnership creditors have priority over partnership
creditors as to non-partnership assets of general partners who are in
bankruptcy, or who are in bankruptcy ("high priority" issue)
9) Should § 1111 be calrified to provide that conversion of
non-recourse debt to recourse debt does not create general partner
liability on such debt ("high priority" issue)
10) Should the Code authorize creation of committees of partners
("high priority" issue)
11) What is the status of new partners, fomer partners, special
partners and partners by estoppel | The issue
of the status of new partners, fomer partners, special partners and
partners by estoppel should be a "non-priority" because it is
much too broad and probably could never be addressed effectively by
statutory enactment. |
NBRC-
0307 | Leon S. Forman | On behalf of the
American College of Bankruptcy (ACB) | "Revised Summary of College Positions," and names and
addresses of ACB focus group members |
|
| ACB concludes that giving Bankruptcy Judges Article III status
would at least eliminate the core and non-core issues and would resolve
the current problems related to jury trials in bankruptcy cases. Issues
related to the change in status for sitting judges should be resolved
through legislation. | ACB recommends that
ideally Bankruptcy Judges should be appointed under Article III, which
would should make the system function more effectively. |
NBRC-
0320 | Robert M. Zinman, on behalf of the Bankruptcy
Institute | American Bankruptcy Institute
("ABI") | Numerous position papers,
memoranda and research material |
|
| In this statement before the NBRC, the author states that ABI
members generally believe that there are many unanswered questions and
unresolved issues concerning the exercise of jurisdiction that can only
be answered by restructuring the bankruptcy courts as Article III
courts. | Bankruptcy Judges should receive
Article III status. |
NBRC-
0320 | Robert M. Zinman, on behalf of the Bankruptcy
Institute | American Bankruptcy Institute
("ABI") | Numerous position papers,
memoranda and research material | 723 | Rule 1007(g) | The author observes that: (1) most courts have found that
partnership ageements are executory contracts; (2) that courts are split
as to whether the trustee exercises the rights of the partners who are
debtors, as opposed to those rights being reserved to the debtor; (3)
most courts have found that clauses automatically converting a general
partner's interest to a limited partnership enforceable in bankruptcy;
(4) the majority of courts have found that the automatic stay does not
protect non-debtor partners when the partnership files for bankruptcy
relief; and (5) The extent of a partner's liability for partnership
debts at state law determines whether, and to what extent, the partner
may be compelled to contribute to a deficiency under current §
723; | Code should be amended as follows: (1)
Clarify the provisions regarding the court's power to prohibit general
partners of the bankruptcy partnership from transferring non-partnership
assets during the pendancy of a case. Such amendments should allow both
partner and partner creditor requests for relief; (2) Provide the
bankruptcy court with the power to compel non-debtor general partners to
disclose information about their financial condition, as the information
is relevant to many issues in the liquidation or reorganization of the
debtor partnership; (3) Provide that the rights of the trustee contained
currently in § 723 of the Code should be equally available to
chapter 7 and chapter 11 trustees; (4) Give nonpartnership creditors and
partnership creditors equal priority claims on the assets of general
partners, and avoid return to the "jingle rule"; and (5)
Clarify that § 1111 to provide that conversion of non-recourse debt
to recourse debt does not create general partner liability on such debt;
(6) Permit creation, where necessary, of a committee of
partners; |
NBRC-
0367 | Susan Block-Lieb | Professor, Seton
Hall University |
|
|
| The author provides the paper, entitled "The Empirical Case
for Article III Bankruptcy Courts," in which she asserts that the
bankruptcy jurisdictional provisions enacted with the 1984 Amendments
have created a cumbersome and over-complicated system which permits
litigants to squander the scarce resources of a bankruptcy estate on
resolution of issues of procedure and jurisdiction. | Supports amendment to give bankruptcy judges Article III
status. |
NBRC-
0443 | Samuel J. Gerdano | Executive Director,
American Bankruptcy Institute | Partner and
Partnership Bankruptcy: A Survey and Analysis of Case Law and Proposed
Amendments to the Bankruptcy Code, by Robert J. Keach,
Esq. |
|
| Author of letter is forwarding
copy of "a detailed analysis and proposed amendments to the
Bankruptcy Code relating to partnerships" prepared by Robert J.
Keach, Esq., Chair of the Subcommittee on Partnerships of the ABI
Committee on Business Reorganization. |
|
NBRC-
0452 | Murray S. Lubitz, Alan Gordon, Wanda Borges | President of Commercial Law League of American, and members of
CLLA Chapter 11 Subcommittee, respectively. | Proposal on release of third parties on confirmation of Chapter
11 Plan. | 1123 | 524, 1141 | While courts are leaning in
the direction of adopting criteria which must be met before a permanent
injunction would be issued and/or a co-debtor could receive a release
from its debt based on provisions in the Debtor's Plan of
Reorganization, there is not yet uniformity as to the circumstances
under which a third party co-debtor may be released from its
liability. | The CLLA recommends that the
Bankruptcy Code be amended to provide that a Plan of Reorganization may
not provide for the release of the indebtedness of a co-debtor unless
the holder of the claim or interest executes a separate release of its
claim or interest against the co-debtor. |
NBRC-
0517 | Morris W. Macey | Attorney, Former
Chairman, Ad Hoc Committee of the ABA | Proposed amendment to §569 of the Code; copy of article by
author and Professor Kennedy from The Business Lawyer, May,
1995. | 569 | 11 | Author is forwarding copy of
Amendment to §569 of the Bankruptcy Code proposed by an Ad Hoc
Committee of the ABA. | Contained in proposed
amendment |
NBRC-
0575 | Lisa Hill Fenning | United States
Bankruptcy Judge |
|
|
| Author believes that the Article III transition proposal is
seriously flawed. Author notes problems in the following areas:
Implementation problems; Retirement/reappointment problems; Separation
from other federal trial level courts; Conceptual problems. Author's
overriding concern seems to be: what is the problem we are trying to
fix, and does this proposal fix it | Author
proposes specific solutions under Retirement/reappointment problems and
Separation from other federal trial level courts. She concludes the
letter by saying "I urge the Commission to reconsider and think
through the logistics and concepts reflected in this
proposal." |
NBRC-
0601 | Richard H. Walker | General Counsel,
Securities and Exchange Commission |
| 1123 | 524(e) | Author, on behalf of the SEC,
comments on the Chapter 11 Working Group Proposal #6, Release of Claims
Against Non-Debtor Parties. The Chapter 11 Working Group's proposal
recommends that Congress amend Sections 1123 and 524(e) of the
Bankruptcy Code to clarify that a plan proponent "may solicit
releases of non-debtor liabilities," with the limitation that only
creditors that "agree" to the release would be bound. The SEC
objects to injunctions of suits against and releases of non-debtors in
Chapter 11 reorganizations involving public companies. Allowing such
releases means that non-debtors, who have not undertaken the burdens of
bankruptcy, benefit from the debtor's bankruptcy by obtaining their own
release with respect to past misconduct, including violations of the
federal securities laws. The Chapter 11 Working Group's proposal is
consistant with the views of the SEC that a creditor may voluntarily
agree to release its claim against third parties; however, the proposal
is not specific enough and may have the unintended result of broadening
the ability of a debtor or plan proponent to provide for non-debtor
releases as an adjunct to a reorganization case. | "...we urge the National Bankruptcy Review Commission to
rethink whether it is wise to recommend any changes to the current
law." |
NBRC-
0604 | Richard H. Walker | General Counsel,
Securities and Exchange Commission | Document
entitled "Issues Identified by Division of Enforcement and Office
of General Counsel of Securities and Exchange Commission for
Consideration by Bankruptcy Review Commission. | 524(e) |
| The SEC has been active in objecting to chapter 11 plans that
purport to extinguish the liability of persons or entities who are not
in bankruptcy. Courts which have held that §524(e) prohibits the
discharge of creditor claims against nondebtors have held that this
section embodies the bankruptcy policy that one who does not undertake
the burdens of bankruptcy may not obtain the benefits of a bankruptcy
discharge by riding on the coattails of a debtor. Such nondebtor
discharges are rife with the potential for abuse. | Amend §1129 to preclude nondebtor discharges. |
NBRC-
0643 | Russell A. Eisenberg | U.S. Bankruptcy
Judge, Eastern District of Wisconsin |
|
|
| Author writes to Hon. Frank W.
Koger. Author's concern "is not whether bankruptcy judges will be
Article I or Article III judges. My concern pertains only to the
transition provisions." Author poses many questions of concern
about the transition. | Author feels that the
NCBJ should act immediately to contact the NBRC with its
concerns. |
NBRC-
0666 | Richard Levin | Attorney, Skadden,
Arps, Slate, Meagher & Flom |
|
|
| Author addresses the
April 3 draft memorandum on the partner as debtor concepts, addressing
specific numbered paragraphs with his analysis and
suggestions. |
|
NBRC-
0676 | Stanley Walker |
| Citizen |
|
| Author writes concerning his testimony before the Commission and
forwarding a copy of his letter to Professor Jack Williams. Author was
involved in a partnership which built a shopping center. He filed to
force the partnership into Chapter 11 bankruptcy, under which a trustee
was appointed who ran the business for four years and opposed all
efforts to convert to a Chapter 7. During the four year period of the
trustee's running of the business, the business made money because of
the trustee's ability to avoid certain payments, among these the taxes.
At the end of that time, trustee claimed that the taxes were owed by the
partners, which the IRS agreed with, but author felt that the taxes
should be paid by the partnership's estate. | Congress needs to address the inconsistencies between the
Bankruptcy Code, Internal Revenue Code, and partnership law. |
NBRC-
0704 | Frank J. Otte | Chief Judge, United
States Bankruptcy Court, Southern District of
Indiana |
|
|
| The proposal of the NBRC to recommend that bankruptcy judges be
elevated to the status of Article III judges with lifetime appointments
will make it appear to the world and Congress that the bankruptcy judges
are using the Commission for personal gain, and it is bad politics. The
proposal will polarize the parties, and that mind set will affect all
other proposals. | Reconsider the issue of
making banktuptcy judges Article III judges and take it out of the
report completely. |
NBRC-
0709 | Laurence J. Kaiser | Attorney, Fisher,
Fisher & Berger | Comments of Laurence J.
Kaiser on (1) The 4/15/97 proposal; (2) Sally Neely's 5/5/97 comments;
and, (3) The 5/5/97 Revised Staff Proposal. | 365 |
| Author agrees that the partnership relationship should not be
treated as an executory contract. | Partnerships and LLC's should each have a unique statutory
definition and treatment. It should be clear in the statute that such
agreements are also not to be treated as financial accommodations under
current §365(e)(2)(b). |
NBRC-
0709 | Laurence J. Kaiser | Attorney, Fisher,
Fisher & Berger | Comments of Laurence J.
Kaiser on (1) The 4/15/97 proposal; (2) Sally Neely's 5/5/97 comments;
and, (3) The 5/5/97 Revised Staff Proposal. |
|
| Author agrees that all ipso facto clauses should be void. The
author does have concerns, however, that parties may manipulate the
non-ipso facto provisions. | No specific
proposals. |
NBRC-
0709 | Laurence J. Kaiser | Attorney, Fisher,
Fisher & Berger | Comments of Laurence J.
Kaiser on (1) The 4/15/97 proposal; (2) Sally Neely's 5/5/97 comments;
and, (3) The 5/5/97 Revised Staff Proposal. | 541 |
| Author agrees that the economic value of the partnership should
be part of the estate under §541; however, he notes that this may
require some greater definition. | No specific
proposal. |
NBRC-
0709 | Laurence J. Kaiser | Attorney, Fisher,
Fisher & Berger | Comments of Laurence J.
Kaiser on (1) The 4/15/97 proposal; (2) Sally Neely's 5/5/97 comments;
and, (3) The 5/5/97 Revised Staff Proposal. |
|
| Author agrees with the basic concept that the agreement among the
partners should determine the transferability of interests; however, he
raises some concerns with the details. | No
specific proposal. |
NBRC-
0709 | Laurence J. Kaiser | Attorney, Fisher,
Fisher & Berger | Comments of Laurence J.
Kaiser on (1) The 4/15/97 proposal; (2) Sally Neely's 5/5/97 comments;
and, (3) The 5/5/97 Revised Staff Proposal. |
|
| Author agrees that buy-out rights and values which have general
application should generally be enforceable, but questions the exclusion
from the estate and from the valuation methodology of "Interests
which arise, accrue or are exercisable after the order for relief."
Author raises other related questions. | No
specific proposal. |
NBRC-
0709 | Laurence J. Kaiser | Attorney, Fisher,
Fisher & Berger | Comments of Laurence J.
Kaiser on (1) The 4/15/97 proposal; (2) Sally Neely's 5/5/97 comments;
and, (3) The 5/5/97 Revised Staff Proposal. |
|
| Author agrees that the DIP should be able to exercise management
rights; however, this raises a number of questions concerning liability
for losses. Author agrees that the DIP or trustee should be able to
decline the responsibility and liability, but does this create a vacuum
in management which itself causes liability | No specific proposal. |
NBRC-
0709 | Laurence J. Kaiser | Attorney, Fisher,
Fisher & Berger | Comments of Laurence J.
Kaiser on (1) The 4/15/97 proposal; (2) Sally Neely's 5/5/97 comments;
and, (3) The 5/5/97 Revised Staff Proposal. |
|
| Author agrees that there may be partnerships and situatioins
where the identity and role of the general partner is so insignificant
that the partners and partnership agreement should not be able to
preclude and assignment of the interests to a new partner; but author is
concerned whether the drafting of such a test will not result in people
drafting around the test in their agreements. He has a similar concern
with the use of separate agreements as a mechanism to evade the policy
being implemented. | No specific
proposal. |
NBRC-
0709 | Laurence J. Kaiser | Attorney, Fisher,
Fisher & Berger | Comments of Laurence J.
Kaiser on (1) The 4/15/97 proposal; (2) Sally Neely's 5/5/97 comments;
and, (3) The 5/5/97 Revised Staff Proposal. | 105 | 362 | Author opposes the use of §105 in the context of partnership
and partners cases. There may be circumstances where it is appropriate
for the intervention of the court to forestall or deter abuse. Author
also agrees with the reluctance to change §362 in the context of
partnerships or partners alone. | No specific
proposal. |
NBRC-
0709 | Laurence J. Kaiser | Attorney, Fisher,
Fisher & Berger | Comments of Laurence J.
Kaiser on (1) The 4/15/97 proposal; (2) Sally Neely's 5/5/97 comments;
and, (3) The 5/5/97 Revised Staff Proposal. |
|
| Author agrees with Sally Neely's comments concerning the status
of prepetition partnership debts and with respect to curable breaches of
the partnership agreement. | The estate should
have the obligation to provide adequate assurance, not just the
opportunity to do so. |
NBRC-
0709 | Laurence J. Kaiser | Attorney, Fisher,
Fisher & Berger | Comments of Laurence J.
Kaiser on (1) The 4/15/97 proposal; (2) Sally Neely's 5/5/97 comments;
and, (3) The 5/5/97 Revised Staff Proposal. |
|
| Author agrees that the resolution of disputes between the trustee
and the individual debtor is a problem. The concept of agency makes
sense, but author is concerned by the increased potential for conflicts
of interest arising from the fragmentation or diffusion of authority and
responsibility engendered by the proposal to separate ownership from
management, future profit and loss from existing economic rights, and
management of future economic rights from management of past economic
rights. | No specific proposal. |
NBRC-
0786 | Richard B. Levin | Attorney, Skadden,
Arps, Slate, Meagher & Flom LLP | 365,
541(c)(1), 363(l) |
|
| How to treat the
relationships among the owners of an LLC or partnership when one of
their number files a bankruptcy petition. | For partnership or LLC purposes, the trustee (or the estate) of a
bankrupt partner would be entitled to "the economic value of the
debtor's ownership interest int he partnership and nothing more."
"That is, the trustee should not be able, by succeeding to the
ownership interest of the partner/LLC member under section 541 to start
running the place and to make management decisions." Author also
discusses the ramifications of his general concept for the NBRC
proposals on the effect of a General Partner or LLC member's bankruptcy
filing, |
NBRC-
0797 | Marcia L. Goldstein | Chair, Committee
on Bankruptcy & Corporate Reorganization, The Association of the Bar
of the City of New York |
|
|
| The May 5, 1997 version of
Proposal #3 of the Small Business Working Group contemplates that, with
respect to management rights only, the automatic stay would not apply to
actions of the partnership against the partner in bankruptcy in
implementing rights under the partnership agreement. The Committee is
troubled by this proposed exception to the automatic stay."
"First, it is often difficult to separate management rights from
economic rights." "More importantly, we are concerned that
the loss of management rights and the economic consequences of that loss
could have a dramatic effect on the partner's creditors and the
reorganization process..." "The proposed exemptions to the
automatic stay also creates incentives for partnership agreements to be
drafted with very broad rights to remove partners." "The
Committee is also concerned that under the Proposal, partners and the
partnership would be permitted to exercise rights under the partnership
agreement without first obtaining relief from the automatic stay
notwithstanding the fact that the exercise of similar rights under
another type of agreement would be subject to the automatic stay."
"Finally, because the proposed exception to the automatic stay
deals only with management rights, it may appear to protect a partner in
circumstances where, arguably, there may be a stronger justification for
an exception to the automatic stay." | "If an exception to the automatic stay will permit actions
to divest a partner of his or her management rights, without any
consideration of the appropriateness of these actions or the impact that
these actions may have on the partner's creditors and the reorganization
process, the Committee believes that the definition of the term
"transfer" in Section 101 of the Bankruptcy Code should be
modified to ensure that an amendment to a partnership agreement may be a
voidable "transfer" if the requirements for a fraudulent
transfer under Section 548 are satisfied." In light of its
concerns, the Committee asks that, in lieu of the proposed exception to
the automatic stay, you consider a modification to Section 362 to
augment the meaning of "cause" for purposes of obtaining
relief from the automatic stay to permit partners or the partnership to
exercise their respective rights under the partnership agreement.
Proposed language is given. |
NBRC-
0797 | Marcia L. Goldstein | Chair, Committee
on Bankruptcy & Corporate Reorganization, The Association of the Bar
of the City of New York |
|
|
| "The Proposal would permit a sale of the 'Partner's
Interests' under Section 363, but only 'for cause shown,' and 'unless
the Partner's Interests are or are more likely than not to be retained
as an asset pursuant to a plan confirmed or more likely than not to be
confirmed under chapters 11, 12, or 13 of the Bankrkuptcy Code.' The
Committee supports your efforts to ensure that the debtor partner will
be able to realize the value of its interests in the partnership.
However, in our view, the Proposal creates multiple opportunities for
litigation over whether "cause" is shown, whether the
Partner's Interests 'are or are more likely than not to be retained' and
whether an actual or, worse, a hypothetical plan is 'more likely than
not to be confirmed.'" "The Committee is particularly
concerned that the Proposal would allow a buyer of the Partner's
Interests to be admitted to the partnership as a partner,
notwithstanding objections that may be raised by other partners
..." The Committee believes that the protection offered by the
Proposal is insufficient. | "We feel that
the standards that are currently set forth in Section 363, as these
standards have been developed by the courts in considering asset sales
generally, are sufficient for a sale of the Partner's Interests."
"The Committee feels that if any partner objects to the admission
of a buyer to the partnership, the buyer should not be admitted to the
partnership except as permitted by the partnership agreement or other
applicable law." The Committee also proposes a revision of Part
V.D.2. of the Proposal, for which the revised language is
given. |
NBRC-
0797 | Marcia L. Goldstein | Chair, Committee
on Bankruptcy & Corporate Reorganization, The Association of the Bar
of the City of New York |
|
|
| "The Committee
believes that the non-debtor partners, the partnership and creditors of
the partnership should be entitled to protection of their respective
interests pending a decision by the partner in bankruptcy to assume or
reject the partnership agreement." | The
Committee proposes specific language to modify the Bankruptcy Code as
outlined above. |
NBRC-
0851 | Ralph Brubaker | Assistant Professor of
Law, Emory University |
| 11 |
| "The Chapter 11 proposal
regarding non-debtor liability releases, by proposing that only
creditors who agree to a release can be bound, adopts the position I
have advocated - that nonconsensual non-debtor releases should not be
permitted. In proposing amendments to sections 1123 and 524(e) to
authorize discretionary approval of consensual releases, however, the
proposal raises issues that I did not address in my article. Consensual
non-debtor releases create some very difficult problems that have not
been fully addressed by the courts or commentators and which should be
more fully considered before any statutory amendments are
proposed." | "I strongly support the
position that nonconsensual non-debtor releases should be
prohibited." "I oppose an open-ended authorization of all
consensual non-debtor releases, because of the potential coercive and
discriminatory aspects of separate consideration
releases." |
NBRC-
0890 | Larry E. Ribstein | GMU Foundation
Professor of Law, George Mason University | Wake Forest Law Review article by author entitled "The
Illogic and Limits of Partners' Liability in
Bankruptcy" |
|
| In general, author believes that
bankruptcy law should not supplant state law in the area of partnerships
and LLC's without a compelling reason for doing so. "First,
federal prohibitions on ipso facto clauses unnecessarily interfere with
efficient private contracts." "Second, state competition and
experimentation are more likely to produce rules that efficiently
balance partner and creditor interests than imposing a single federal
law." "Third, state partnership law is better able than
federal law to take into account rapidly changing circumstances
affecting business organizations." "Fourth, by trupming state
law rights, bankruptcy law gives partners and creditors perverse
incentives to initiate costly and unnecessary bankruptcy
proceedings." Author goes on to discuss particular suggestions he
finds objectionable. | 1) adopt Proposal A to
clarify that Code §365 does not apply to partnerships, LlCs or
analogous firms; 2) clarify the enforceability of partnership and
analogous agreements regarding rights of bankrupt partners; 3) clarify
that neigher §362 nor any other Code provision interferes with the
effectuation of these agreements; 4) provide that a bankrupt member's
rights in a partnership or analogous firm and whether these rights are
property of the estate under §541 and subject to control and
disposition under §363 are governed by state law. |
NBRC-
1138 | Amy M. Tonti | Chair, Bankruptcy and
Commercial Law Section, The Allegheny County Bar
Association | Recommendations of the Allegheny
County Bar Association's Bankruptcy and Commercial Law Section to the
National Bankruptcy Review Commission. |
|
| Author submits the Recommendations of the Allegheny County Bar
Association's Bankruptcy and Commercial Law Section to the National
Bankruptcy Review Commission. | "The
Section supports the changing of the status of Bankruptcy Judges from
Article I to Article III Judges." |
NBRC-
1143 | Robert A. Greenfield | Co-Chair,
Committee on Court System and Bankruptcy Administration, National
Bankruptcy Conference | National Bankruptcy
Conference - Reforming the Bankruptcy Code |
|
| Author writes on behalf of the National Bankruptcy Conference to
express its support for Article III status for bankruptcy
judges. | Author supports Article III status
for bankruptcy judges and makes other suggestions for changes to the
Code with regard to their powers, including changes if Article III
status is not granted. |
NBRC-
1169 | John A. Edginton | Attorney, Dezurick
Edginton & Harrington LLP |
|
|
| "To put it mildly, the fact
that bankruptcy judges presently are constituted as Article I judges as
opposed to Article III judges, can strongly be argued as a bar to a
bankruptcy court's ability to sell vessels free and clear of liens,
particularly maritime liens, in an internationally recognized
sale." "Because of the present infirmity, however, in order
to achieve a rational sale of a commercial vessel free of liens, a
bankruptcy judge must grant some form of relief from stay to allow the
District Court judge to sell the vessel at an admiralty foreclosure
sale. In some cases the District judge, in turn, has empowered the
bankruptcy judge actually to carry out this functin as a special master.
This is unnecessarily complex." | "...I would support Professor Jackson's memorandum to you
urging Article III status be given to bankruptcy judges, as was the
apparent intent of the 1978 commission." |