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11. Cost Control Failure

Lynn M. Lopucki and Joseph W. Doherty

in Professional Fees in Corporate Bankruptcies: Data, Analysis, and Evaluation

Previous chapters described competition among some bankruptcy courts for the cases of the largest public companies. To succeed in that competition, the bankruptcy courts must abandon the effort to ... More

Previous chapters described competition among some bankruptcy courts for the cases of the largest public companies. To succeed in that competition, the bankruptcy courts must abandon the effort to control fees. Bankruptcy professionals will not steer their clients to courts that will control the professionals' fees. That puts the competing courts in a bind. The Bankruptcy Code and Rules require that the courts control professional fees, specify the precise methods by which they are to do it, and bar the courts from relaxing the requirements. The competing bankruptcy courts have responded to this dilemma by going rogue, routinely authorizing and tolerating professional fee practices that violate the Bankruptcy Code and Rules. Because most bankruptcy judges are unwilling to adopt illegal practices, most bankruptcy courts have dropped out of the competition. The effect has been to clear a path to victory for judges willing to adopt illegal practices. This chapter documents three such practices empirically: the Ordinary-Course-Professionals Practice, the Prior-Payment-Disclosure Practice, and Disburse-First-and-Decide-Later Practice.Less

Missing Debtors: National Lawmaking and Global Norm-Making of Corporate Bankruptcy Regimes

Terence C. Halliday, Susan Block-Lieb, and Bruce G. Carruthers

in A Debtor World: Interdisciplinary Perspectives on Debt

Corporate insolvency is about debt and it always involves debtor corporations as key stakeholders. It should, therefore, follow that stakeholders integral to everyday bargaining over debt management ... More

Corporate insolvency is about debt and it always involves debtor corporations as key stakeholders. It should, therefore, follow that stakeholders integral to everyday bargaining over debt management should also be integral to the meta-bargaining that produces the rules that govern everyday corporate bankruptcies. Such is not the case. In many historical circumstances—in countries with economies both advanced and developing; in situations of economic crisis and in ordinary times; in Europe, North America, and Asia—the stakeholders who mobilize to craft national bankruptcy law seldom include debtors. Debtors are also conspicuous by their absence from forums of global norm-making in which international financial institutions or international governance organizations create norms designed to guide national lawmaking. In short, a class of bankruptcy players for whom everyday bargaining over debt obligations is a matter of corporate life or death seldom appears in the forums that institutionalize the rules by which their individual fates are determined. How is this puzzle to be explained? This chapter examines hypotheses that address this issue through three research projects. The first studied the politics behind two landmark pieces of lawmaking in advanced economies—the US Bankruptcy Code of 1978 and the English Insolvency Act of 1986. The second project studied three Asian economies in the wake of the Asian Financial Crisis. The third project examines the decade-long initiatives by the UN Commission on International Trade Law to create global norms for corporate bankruptcy regimes.Less

Bankruptcy Transformed

in Mass Torts in a World of Settlement

This chapter describes how the defeat of the class settlements in Amchem Products, Inc. v. Windsor and Ortiz v. Fibreboard Corp. has led to even more problematic efforts to replicate those ... More

This chapter describes how the defeat of the class settlements in Amchem Products, Inc. v. Windsor and Ortiz v. Fibreboard Corp. has led to even more problematic efforts to replicate those arrangements through “prepackaged” reorganizations of asbestos defendants under § 524(g) of the Bankruptcy Code. It also evaluates how § 524(g) came to dominate peacemaking in asbestos litigation. Section 524(g) would become a blueprint for how private negotiations might largely bypass the conventional reorganization process. The bankruptcy court confirmed the Combustion Engineering prepack, and the district court largely upheld that decision. The dynamics revealed by the Combustion Engineering prepack actually help to point the way toward more productive reform. The most recent addition to the literature on mass tort bankruptcies builds on the insight that reorganization plans allocate not only resources but also risk.Less

Summary of Discussion

Roger B. Porter, Robert R. Glauber, and Thomas J. Healey

in New Directions in Financial Services Regulation

This chapter consolidates the insights and findings discussed regarding the implementation of a possible regulatory structure that is fitting for the resolution of the 2008 financial crisis. It ... More

This chapter consolidates the insights and findings discussed regarding the implementation of a possible regulatory structure that is fitting for the resolution of the 2008 financial crisis. It discusses remarks on the endorsement of the creation of a resolution authority. It notes concern with resolution authority as well: that it may not be possible to prevent a permanent bailout operation. As an alternative, then, it has been suggested, the U.S. Bankruptcy Code is a better regulatory mechanism, also noting that more transparency should be instilled at the Federal Deposit Insurance Corporation. Also discussed in the chapter is the idea of making the Federal Reserve the regulator of systemic risk, which gathered a variety of responses. Finally, the chapter also summarizes the housing bubble—its decline as well as the possible causes for its downfall.Less