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ABI - National Bankruptcy Review Commission

National Bankruptcy Review Commission

Agenda for June Meeting
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001


June 20, 1996

9:00 - 9:30 Opening Remarks: Personnel/Meeting Schedule

Administrative Matters
Certification of Minutes for May Meeting
Budget Report
Review of By-Laws and Operating Procedures
Speaking Engagements/Congressional Report
Monthly Material Distributions

9:30 - 12:00 Speakers

9:30 - 9:55 American Bankruptcy Institute

9:55 - 10:00 Recess

10:00 - 12:00 American Bar Association - Business Section
American College of Bankruptcy
Commercial Law League of America
National Bankruptcy Conference
National Conference of Bankruptcy Judges

12:30 - 1:30 Lunch Break

1:30 - 4:30 Meeting of Working Groups
Service, Ethics
Small Business
Consumer Bankruptcy

June 21, 1996

9:00 - 9:30 Discussion and Adoption of Recommendations
Appellate Structure
Venue

9:30 - 12:30 Continued Meeting of Working Groups
Procedure
Government
Chapter 11

12:30 - 1:30 Working Lunch: Group Summaries

1:30 - 2:30 Continued Group Summaries/Open Forum

2:30 - 3:00 Administrative Matters
Arrangements for Upcoming Public Meetings
Regional Meetings

3:00 Adjournment

IMPROVING JURISDICTION AND PROCEDURE
PROPOSAL #1/APPEALS


Background

Title 28 gives the District Courts jurisdiction to hear appeals from final judgments, orders, and decrees of the bankruptcy judges. The district courts also have discretionary jurisdiction to hear appeals fro interlocutory orders and decrees of bankruptcy judges. The Courts of Appeals have jurisdiction over appeals from all final orders, judgments and decrees of the district courts and of the bankruptcy appellate panels. The jurisdiction of the United States Supreme Court in bankruptcy matters is the same as its jurisdiction in ordinary civil matters. 28 U.S.C. 158(a), (d).

Proposal

The current system which provides two appeals as of right from final orders in bankruptcy cases should be changed to eliminate district court review.


Reasons for the Change

This provision is driven largely by concerns of cost and efficiency. Each appeal is an expensive excursion for both debtor and creditor who must work through two layers of appeals for a final resolution of their dispute. More importantly, the conflicting opinions and uncertainty that result from district court appellate decisions impose very real costs on all parties who use the bankruptcy system.

An important function of an appellate system is to provide stability and consistency in case law decision-making. In its most simple model, trial courts make many rulings, some of which conflict with others, and appellate courts review those decisions, resolving disputes and, over time, promoting development of a coherent body of law.

The Constitution authorizes Congress to "establish a uniform law of bankruptcies," but the bankruptcy appellate structure has yielded opposite results. Appeals from bankruptcy court decisions go to the district courts, many for de novo review of fact as well as law. The decision of the district court binds the parties in the case, but because there are multiple district courts in each district, the district court decision does not create binding precedent for all bankruptcy courts within the district. Only when a case is appealed a second time to the Court of Appeals will the decision create binding precedent. Only when decisions from the Court of Appeals are appealed to the Supreme Court is there a nationally binding decision on all the bankruptcy courts (and other courts as well) in a bankruptcy matter.

Many, although not all, bankruptcy court opinions are published in a separate West reporter devoted to bankruptcy cases. Many bankruptcy opinions from the district courts are also published. The consequence is that about fourteen volumes of opinions, few of which are binding on any other future case, are published each year. Practitioners assert that it is possible to find a bankruptcy opinion to support any legal proposition.

A second difficulty with the current structure is that bankruptcy court decisions are reviewed by judges with highly variable interest in bankruptcy cases and differing bases of expertise in the area. As a result, a significant number of published decisions are not carefully reasoned.

A bankruptcy litigant has access to more appeals than a criminal defendant, a tax litigant, a tort victim or almost anyone else in the federal system. Because many bankruptcy court decisions are reviewed de novo, losing litigants also frequently have an opportunity to recast their factual presentations, taking two bites at the apple even before they begin an appeal on the legal issues. This is a wasteful system in both time and money, with a great deal of duplication. Parties with greater resources to withstand a lengthy and expensive appellate process have a distinct advantage.

The Ninth Circuit provides a Bankruptcy Appellate Panel (BAP) system, and some other circuits are following suit. A BAP is three bankruptcy judges sitting as a panel to hear and decide appeals from bankruptcy court decisions. But BAP's are a voluntary alternative, which means that any party facing an appeal in front of a BAP that previously has ruled unfavorably on the issue presented in the instant case simply refuses to consent to using the BAP. BAP's may actually accelerate the divergence of views on various legal questions; from a BAP, parties may appeal to the Court of Appeals, as they may from a district court decision, so that BAP's do not necessarily reduce the number of appeals. A combined BAP/district court appellate structure, as exists in the Ninth Circuit, does not create binding precedent with a single appeal. The Commissions showed no enthusiasm for a BAP structure to solve the problems identified.

Competing Considerations

Direct appeals to the Courts of Appeals may increase the burden on those appellate courts, By eliminating the first round of appeals from the appellate process, more cases may go to the Courts of Appeals for resolution. Although this will have the salutary effect of making laws that are consistent within the circuit, it will impose a heightened decision making burden on the appellate courts. Over time, however, this burden might decrease as more issues are settled within the circuits and fewer uncertainties linger.

Direct appeals may also exacerbate the Constitutionality problems that inhere in the current Article I/Article III system. While there is no Constitutional distinction between having a case reviewed by the District Court and by the Court of Appeals, the level of control currently exercised by the bankruptcy courts will become more evident. In the eyes of many commentators, bankruptcy courts are exercising the functions of Article III courts. With a more direct appeals process, that view could become more widespread.

IMPROVING JURISDICTION AND PROCEDURE
PROPOSAL #2/VENUE


Background

Title 28 provides that the proper place to file a petition under the Bankruptcy Code is in the district where the debtor's domicile, residence, principal place of business, or principal American assets have existed for a grater part of the preceding 180 days. Property venue also exists in any district where a case involving a debtor's affiliate, general partner, or partnership is pending. 28 U.S.C. 1408.

Proposal

The current venue system should be modified to prohibit corporate debtors from filing for relief in a district based solely on the debtor's incorporation in the state where that district is located or based solely on an earlier filing by a subsidiary in the district. All other venue options should be left intact, and the court's discretionary power to transfer venue in the interest of justice and for the convenience of the parties should not be restricted.


Reasons for the Change

Debtors file for bankruptcy where they are located. Most cases involving consumer debtors or small businesses present no question about where to file. In some jurisdictions, near state borders, for example, some problems arise when debtors attempt to choose a more convenient courthouse or a more debtor-friendly forum. In general, however, venue issues do not arise in these cases.

But in a global economy, the questions of venue are not so obvious. For multi-state corporations venue options are broad, and here is where the mischief begins. Title 28 permits a corporation to file a bankruptcy petition in its state of incorporation, the location of its "principal place of business," or the location of its "principal assets." For the multi-state corporation, the ability to manipulate the location of both the "principal place of business" and the "principal assets" provides a choice of a number of different jurisdictions. As more businesses incorporate in a state that is not where they do business, the magnitude of this opportunity, and its effect on the bankruptcy system, increases.

In addition to the state-of-incorporation option, Title 28 multiplies the opportunities for filing by corporations that have related entities. A corporation may follow its corporate affiliate into bankruptcy in the same jurisdiction, even if it has no other ties to that jurisdiction. So, for example, a corporation with an affiliate in bankruptcy in State A can file for bankruptcy in State A even if it meets none of the other criteria for filing in State A. The famous example of this method of forum selection is Eastern Airlines. Its frequent flier club, Ionosphere, Inc., filed for bankruptcy in New York. The huge corporation, Eastern Airlines, then followed its tiny affiliate into a New York bankruptcy court without establishing any contacts with New York.

Does forum shopping occur frequently? In their landmark study of the bankruptcies of publicly traded companies in the 1980s, Professors Lynn LoPucki and William Whitford documented the companies' choices for filing locations. They concluded that venue could be explained ONLY by forum shopping in about 16% of the cases, and another 63% of the cases showed some signs of forum shopping. In large cases, the widespread perception is that companies can--and frequently do--choose their fora based on a number of criteria other than those listed in the statute.

The reasons for forum shopping vary among debtors and their attorneys. Some debtors claim they choose a forum because its well-developed case law or proximity to large, knowledgeable law firms actually decrease the cost of the bankruptcy. Respect for a local judiciary with demonstrated abilities to handle large cases may account for the disproportionate migration of large cases to one or two cities.

Other reasons are less benign. Professors LoPucki and Whitford identify the desire among debtors' counsels to go to fora that permit high attorneys' fees and do not pro-actively review fee applications. Gaining strategic advantage over other litigants, such as choosing a forum where a harmful ruling is not applicable, is another frequently cited reason to select one forum over another. Sometimes a venue is chosen for its inaccessibility for certain litigants, driving up the costs of their pursuit of their claims and making it difficult for them to serve on committees. Such strategies can affect the outcome of cases.
Professors LoPucki and Whitford demonstrate that parties cannot effectively fight forum shopping. The debtor nearly always makes the initial forum selection by choosing its filing location. For creditors to protest, they need local counsel and they need to mount an expensive suite at the inception of the case. Because bankruptcy cases often have a number of issues decided in the first few days, judges often feel that by the end of a week, the case is already theirs.

The law gives the initial judge great discretion in deciding forum disputes. Professors LoPucki and Whitford report that attorneys in big cases explained that judges were unlikely to turn away high-visibility cases because they "consider them to be career opportunities and are therefore reluctant to transfer them to other districts." In the LoPucki-Whitford sample of publicly traded cases, no voluntary cases were moved after filing, despite some challenges to venue and the fact that nearly 80% of the cases showed some signs of forum shopping.

Some of the costs of forum shopping, when it exists, are obvious. Forum selection becomes a strategic tool, available for clever parties to manipulate outcomes to the disadvantage of smaller creditors who are cut out of the bankruptcy process. Because forum shopping is available in its extreme forms only to large companies, it also involves an element of discrimination against smaller businesses and consumers who have no such choices.

The real costs of forum shopping, if it is widespread, might be even greater. The damning charge that forum shopping is used to select fora that are fee-friendly, combined with the allegation that judges want to keep high visibility cases, raises a troubling specter of courts competing for big-case bankruptcy business. If they do compete, they would do so by making lawyer-friendly, debtor-friendly rulings. Of course, the application of these rulings is not limited to the mega-cases they attract; these rulings also affect every other business case before the courts. Given the complex appellate structure currently in existence and the extraordinary discretionary decision-making vested in the bankruptcy courts, the impact of forum shopping is compounded. Court competition for cases could distort analysis of legal problems and undermine the fairness--real or perceived--of the bankruptcy system.

These proposals for change in forum selection criteria are not novel. In large part, they reflect the state of the law on forum selection in bankruptcy prior to the 1978 Amendments.

Competing Considerations

Restricting forum choices would undoubtedly increase litigation over the appropriateness of forum choices. The desire to move to a forum where the debtor perceived advantages could be gained would not go away. While some debtors could be expected to comply with the more restricted provisions, undoubtedly there would be other debtors who would challenge the statute at the margins by selecting a friendly forum, prompting their creditors to challenge the forum choice.

"Principal place of business" is not an entirely rigid criterion. The main debates under this system, however, would likely be over whether the "principal place of business" was at the location of corporate headquarters or the location of most of the assets. In either case, the venue choices would be sharply narrowed. More importantly, whatever venue was selected would bear a significant relationship to the operation of the business.

For some businesses, "principal place of business" would remain an illusive concept. As companies do more work by computer, the "virtual headquarters" may be located anywhere. Moreover, as more businesses consist of intangible assets, questions about where the assets are located or where the business transactions take place become ephemeral. The courts would be called on to develop new guidelines for new kinds of corporations.

It is important to note that not all commentators believe that forum shopping is an inherently evil practice. Professors LoPucki and Whitford documented the forum shopping practices of the publicly traded companies as they decided where to file for bankruptcy, but they did not conclude that such practices be curtailed. Forum shopping permits a few courts to develop expertise in dealing with large bankruptcy cases. It also encourages the law to develop in ways that facilitate large bankruptcy reorganizations. These may be positive , rather than negative implications of the current system.

 

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