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    A Claims Agent Can Only Profit from the Fees the Clerk of Court Can Charge

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    (Excerpt) In the Southern District of New York, the retention of claims agents is governed by the judicial procedure set forth in section 156(c) of title 28 of the United States Code, for cases under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) that involve 250 or more creditors and equity holders. When a claims agent is retained under section 156(c), the claims agent is acting in the same capacity as the clerk and the services are “limited in scope to those duties that would be performed by a Clerk of Court with respect to providing notice and processing claims (such as maintaining a claims register).” In a chapter 11 case, a clerk may only charge fees pursuant 28 U.S.C. § 1930 or obtain fees from the debtor’s estate. In In re Madison Square Boys and Girls Club, Inc., the Southern District of New York held that a claims agent retained under section 156(c) cannot have for-profit agreements, with third parties, for fees that a clerk of the court could not charge. The court determined that when a claims agent is retained under section 156(c), the agent is subject to the same constraints as the clerk. Ultimately, a claims agent cannot charge fees that a clerk cannot charge and perform activities the clerk cannot perform. This article examines the constraints on claims agents that are retained under section 156(c) and the fees a claims agent can charge. Part I focuses on the differentiation between claims agents that are retained under section 156(c) and those retained pursuant to 327(a) of the Bankruptcy Code. Part II examines the fees that a claims agent retained under section 156(c) is allowed charge

    Exceptions to the Rule: When Non-Debtor Entities are Protected by the Automatic Stay

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    (Excerpt) In most cases, the automatic stay, under section 362 of title 11 of the United States Code (the Bankruptcy Code ), stays all creditors from pursuing litigation against debtors. Nonetheless, non-debtor entities can obtain the protection afforded to debtors by the automatic stay in limited circumstances. There are two primary ways of staying litigation against a non-debtor. First, through demonstrating that there are exceptional circumstances to extend section 362 to a non-debtor. Second, through satisfying the standard for an injunction pursuant to section 105 of the Bankruptcy Code. This Article considers the circumstances by which a non-debtor entity may receive the protection of the automatic stay under section 362. Part I discusses the general standard under section 362 — that the automatic stay only extends to debtors. Part II analyzes the main exceptions to the general rule, whereby the automatic stay may be extended to non-debtors. Part III sets forth the injunction standard under section 105, which may be utilized to enjoin actions against a non-debtor

    Of Systems Thinking and Straw Men

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    (Excerpt) In Content Moderation as Systems Thinking, Professor Evelyn Douek, as the title suggests, endorses an approach to the people, rules, and processes governing online speech as one not of anecdote and doctrine but of systems thinking. She constructs this concept as a novel and superior understanding of the problems of online-speech governance as compared to those existent in what she calls the “standard [scholarly] picture of content moderation.” This standard picture of content moderation — which is roughly five years old — is “outdated and incomplete,” she argues. It is preoccupied with anecdotal, high-profile adjudications in which platforms make the right or wrong decision to take down certain speech and not focused enough on the platform’s design choices and invisible automated removal of content. It draws too heavily from First Amendment contexts, which leads to platforms assessing content moderation controversies as if they were individual judicial cases. Douek calls her approach “both ambitious and modest.” The modest part calls for structural and procedural regulatory reforms that center content moderation as “systems thinking.” The notion of systems thinking conveys a generalized approach of framing complexity as a whole comprised of dynamic relationships rather than the sum of segmented parts. The ambitious part is dismantling the standard picture of content moderation scholarship and challenging the resultant “accountability theater” created by platforms and lawmakers alike. In Douek’s view, it is this “stylized picture of content moderation” that is to blame for regulators assuming “that the primary way they can make social media platforms more publicly accountable is by requiring them to grant users ever more individual procedural rights.” There is much to like about understanding content moderation as a complex, dynamic, and ever-evolving system. Particularly useful for an article titled Content Moderation as Systems Thinking that calls for regulation of technology, there is rich and detailed scholarship on content moderation in both sociotechnical theory and the law. Indeed, most of the academic work on content moderation is done by sociotechnical theory scholars who study content moderation and platform governance using systems-thinking and systems-theory frameworks. Sociotechnical systems theory posits that an organization is best understood and improved if all parts of the system — people, procedures, norms, culture, technology, infrastructure, and outcomes — are understood as relational and interdependent parts of a complex system. In analyzing private law under this theoretical framework, Professor Henry Smith describes systems as “a collection of elements and — crucially — the connections between and among them; complex systems are ones in which the properties of the system as a whole are difficult to infer from the properties of the parts.” Examples of systems abound at all levels of nature and society: from cognition to social networks or economies, or as Smith proposes, systems of law. Systems thinking, then, according to those that study it, is one step removed: “literally, a system of thinking about systems.” This definition is, of course, tautological; even the authors of the only article Douek cites on the topic seem confused. But the takeaway of “systems thinking” is much the same as that described by sociotechnical theory and by Smith: an “understanding of dynamic behavior, systems structure as a cause of that behavior, and the idea of seeing systems as wholes rather than parts” — wholes that create “emergent properties” whose origins cannot be traced to any one part or interplay of the system. It is both the ocean and the wave, the forest and the trees, as well as all of the interactions and the emergent properties resultant

    Whether a Surety Agreement is an Executory Contract is a Crucial Determination for Both Creditors and Debtors in Bankruptcy

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    (Excerpt) In bankruptcy, whether a surety bond is an executory contract is not a question that is often addressed by the circuit courts of appeals. However, this determination is crucial for both debtors and creditors because only executory contracts can be assumed, rejected, or pass through in bankruptcy. “A surety bond creates a three party relationship, in which the surety becomes liable for the principal\u27s debt or duty to the third party oblige.” The term “executory contract” has not been defined within title 11 of the Unted States Code (the “Bankruptcy Code”), however the Supreme Court concluded that Congress intended the term to mean a contract \u27on which performance is due to some extent on both sides.\u27 In 2022, the Fifth Circuit has provided some guidance on this issue. In Matter of Falcon, the Fifth Circuit held the surety bond agreement in this multiparty contract case was not executory and therefore could not be assumed under the reorganization plan. However, the court explained this holding should not preclude the possibility of future courts applying a more flexible approach when determining whether a surety agreement is an executory contract in multiparty contract cases. This article explores the question of whether a surety bond is an executory contract in a threefold approach. Part I discusses how courts determine whether a contract is executory. Part II analyzes how executory contracts are treated in Chapter 11 cases and the effects of assuming versus rejecting a contract. Part III considers what the future of surety bonds in multi party cases may look like

    Theft of the American Dream: New York City\u27s Third-Party Transfer Program

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    (Excerpt) On September 5, 2018, Paul Saunders discovered a notice on the front door of his mother’s home: it stated that the property, a Brooklyn brownstone owned by the family for over forty years, now belonged to a company called Bridge Street. His mother, seventy-four-year-old retired nurse Marlene Saunders, had been notified several months earlier that her home, valued at two million dollars, was in danger of being foreclosed because she owed New York City (the “City”) $3,792 in unpaid water charges. Her son had already paid the water bill, but when he contacted the water department, he discovered that the City had failed to record the payment. The water department assured Paul that there were “no problems.” In spite of these assurances, the City transferred the property to a “qualified sponsor[ ]” under the Third Party Transfer Program (“TPT”). Marlene Saunders was fortunate: after she and her son launched an aggressive advocacy campaign comprising of a “whirlwind” of phone calls and visits with City Council members, the City reversed the transfer and returned her home. Unfortunately, many property owners have not been so lucky. TPT was enacted in 1996 and granted New York City the authority to utilize the in rem foreclosure process to transfer ownership of abandoned, distressed, and tax-delinquent properties to third-party developers—free of charge. Prior to enacting TPT, the City self-managed properties it acquired through foreclosure, but by the 1990s, the management of thousands of dilapidated buildings had become prohibitively expensive. TPT was conceived as a solution to this crisis— allowing the City to continue addressing abandonment and tax delinquency through in rem foreclosure while transferring the burdens of maintenance and management to private owners. However, the cure has proven worse than the disease. What started as an anti-abandonment and tax enforcement initiative has devolved into “something far more expansive, far more excessive and far more entangled with America’s treacherous history of race and homeownership.” Under TPT, residential properties that owe nothing in tax arrears and have minimal municipal violations have been transferred to third-party developers for free—while homeowners receive no compensation for the lost value of their homes. This Note will argue that New York City has violated citizens’ constitutional rights through TPT’s administration. Part I of this Note will discuss the motivating factors and purpose behind the enactment of TPT. Part II will discuss TPT’s statutory framework, legal challenges to the program, and the City’s response to such challenges. Part III will argue that property seizures under TPT are unconstitutional takings because the City fails to provide homeowners with an adequate means to recover the surplus value of their property. Part IV will propose that the City modify the statutory procedures to restrict the transfer of properties with minimal tax liens and compensate owners for surplus equity

    Activist Extremist Terrorist Traitor

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    (Excerpt) Abraham Lincoln had a way of capturing, rhetorically, the national ethos. The “house divided.” “Right makes might” at Cooper Union. Gettysburg’s “last full measure of devotion” and the “new birth of freedom.” The “mystic chords of memory” and the “better angels of our nature.” “[M]alice toward none,” “charity for all,” and “firmness in the right.” But Lincoln not only evaluated America’s character; he also understood the fragility of those things upon which the success of the American constitutional experiment depended, and the consequences when the national ethos was in crisis. Perhaps no Lincoln speech better examines the threats to civil order and American constitutional government than his 1838 address to the Young Men’s Lyceum of Springfield, Illinois: “The Perpetuation of Our Political Institutions.” Indeed, perhaps no speech is better suited to the dangers that American government and politics now face in our time. The Lyceum speech first critiques mob violence and lawlessness, then addresses threats to institutions and order from political leaders themselves. Lincoln first extols the virtues of American political institutions, but acknowledges that if danger “ever reach us, it must spring up amongst us.” The omen America then faced, Lincoln says, citing mob violence, was the “increasing disregard for law which pervades the country.” He laments “the growing disposition to substitute the wild and furious passions” for the authority of courts, and “the worse than savage mobs” for executive authority. A “mobocratic spirit” takes hold when government is unable, or unwilling, to protect the citizenry from lawlessness and violence—and breaks the attachment of people to their government. These mobs regard “Government as their deadliest bane,” and “make a jubilee of the suspension of its operations; and pray for nothing so much, as its total annihilation.” Lincoln confessed that bad laws exist and that legal remedies for legitimate grievances sometimes do not. But “[t]here is no grievance that is a fit object [for] mob law.” Lincoln’s answer: to make reverence for the law the Nation’s “political religion,” upon the altars of which Americans should “sacrifice unceasingly.” Lincoln then asks why this state of affairs would pose a danger now to our political institutions; why is the risk now greater than before? As the American experiment has succeeded, the chase for national success feels concluded: “This field of glory is harvested, and the crop is already appropriated.” But, he says, “new reapers will arise, and they, too, will seek a field.” New political leaders—tyrants and demagogues, really—will not be satisfied to carry on the political institutions and traditions that the founding generation created. “Towering genius,” he says, “disdains a beaten path.” These new leaders will seek distinction of their own, possessing not only genius but “ambition sufficient to push it to its utmost stretch.” And in doing so, they may seek to tear down those solid institutions and traditions that have been built

    Expanding the Right to Counsel in Eviction Cases: Arguments for and Limitations of Civil Gideon Laws in a Post-COVID 19 World

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    (Excerpt) With the cost of housing rising nationwide and incomes largely failing to keep pace with this increase, the United States is in the midst of interrelated affordable housing and eviction crises. The housing affordability metric that has long been the bedrock of American housing policy is that households should spend no more than thirty percent of their income on housing. This is no longer an attainable goal for many Americans. By 2017, forty-eight percent of renter households were “rent burdened”—they paid more than thirty percent of their income in rent. Over a quarter of American renters, or 11 million households, are “severely rent burdened,” meaning they spend more than half their monthly income on rent. When a renter is rent-burdened, they have less income remaining for non-housing essentials like food, medicine, transportation, and childcare. The chances of eviction also climb significantly. Eviction statistics paint a sobering picture. In 2016—the last year the Princeton University-based Eviction Lab collected and aggregated eviction data at the national level—approximately 2.3 percent of renter households in the United States lost their housing due to eviction. This figure is roughly double what it was in 2000. There is also strong gender and racial disparity in these statistics. Black renters face eviction nearly twice as frequently as white renters. Low-income Black women face the highest eviction rates of all, with one in five Black female renters reporting they have experienced eviction at least once in their lifetimes. The devastating mental, physical, and financial consequences evictions have on individuals, children, families, and communities have been well documented. Eviction means more than just losing a place to live. Mothers who experience eviction suffer higher rates of material hardship, depression, and poorer health than their peers. Children facing eviction are more likely to be disciplined in school and involved in child protective services. Eviction can lead to a vicious cycle of housing insecurity and homelessness. People who are evicted struggle to secure new housing, because evictions stay on a renter’s record for years— even if the case was dismissed—and many landlords screen applications for prior evictions through a process called “blacklisting.” Tenants evicted from public housing may, under federal law, be denied future federal housing assistance for up to five years. Evictions further contribute to the ongoing cycle of poverty by damaging renters’ credit scores and by increasing the chances they will lose their jobs. And because eviction and housing displacement can increase transiency and force renters into homelessness and crowded living environments, eviction and housing insecurity can increase exposure to and the continued spread of COVID-19. The COVID-19 pandemic made these problems worse. By late December 2020, ten million Americans were behind on their rent obligations due to COVID-related wage and job loss, a figure three times higher than the normal rate. Because of this, the pandemic initially brought the eviction crisis into the national conversation in a way that has little historical precedent. During the pandemic’s first year, the federal government implemented several new assistance programs to help vulnerable tenants; these included the CARES Act, the Emergency Rental Assistance (“ERA”) program contained within the American Rescue Plan, and the Center for Disease Control’s eviction moratorium. Each program temporarily bolstered the safety net for low-income renters but fell short of solving the underlying causes of housing insecurity that existed long before the pandemic. Now, with CARES Act funding depleted and the Supreme Court invalidating the eviction moratorium on August 26, 2021, there remains little federal protection against eviction—but the crisis facing renters is not over. Two years after the pandemic began, eight million Americans remained behind on their rent and at risk of losing their housing

    COVID-19 & The WARN Act During a Bankruptcy Case

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    (Excerpt) The Worker Adjustment and Retraining Notification Act (“WARN Act”) provides that “an employer shall not order a plant closing or mass layoff until the end of a 60-day period after the employer serves written notice of such order to each impacted employee.” Under the WARN Act, a plant closing is “permanent or temporary shutdown of a single site of employment, or one or more facilities or operating units within a single site of employment….” A mass layoff is “a reduction in force which…(a) is not the result of the plant closing; and (b) results in an employment loss at the single site of employment.” To determine who gets notice under the WARN Act, one must be an impacted employee. The main purpose of the WARN Act is to allow for “good faith, well-grounded hope, and reasonable expectations” that seek to “protect the employer’s exercise of business judgment and are intended to encourage employers to take all reasonable actions to preserve the company and the jobs.” If an employer fails to comply with the WARN Act, and a claim is made against them, the plaintiff must show that “(1) the defendant was ‘an employer;’ (2) the defendant ordered a ‘plant closing’ or ‘mass layoff;’ (3) the defendant failed to give employees 60-days’ notice before the closing or layoff; and (4) the plaintiff is an ‘aggrieved’ or ‘affected’ employee.” If a plaintiff can prove all four elements, “the employer may avoid liability by providing an affirmative defense that qualifies for one of the Act’s three exceptions.” Those three exceptions to the WARN Act are the faltering company exception, the unforeseen business circumstances exception, and the natural disaster exception. Prior to the pandemic, the aforementioned exceptions to the Act were used by businesses that filed for relief under Chapter 11 of the United States Code (the “Bankruptcy Code”) to argue why they could not comply with the WARN Act. However, businesses added COVID-19 as a defense after the virus became widespread and impacted business operations. Some courts, like the Delaware bankruptcy courts, held that COVID-19 was a valid excuse for businesses to not give notice under the WARN Act, meanwhile in other bankruptcy courts, COVID-19 is considered not to be an excuse as it is not explicitly named within the act. This article examines the varying standard held by the bankruptcy courts in regard to whether COVID-19 is an exception to complying with the WARN Act and the different methods courts have interpreted this exception during Chapter 11 proceedings. Part I addresses how the bankruptcy courts dealt with WARN Act violations prior to the pandemic. Part II discusses how the courts dealt with WARN Act violations during the pandemic

    Creditors Not Precluded From Recovering Debtors’ Commercial Tort Litigation Recovery Through Security Interest

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    (Excerpt) Title 11 of the United States Code (the “Bankruptcy Code”) provides valuable protections for secured creditors. A secured creditor of a chapter 7 debtor is entitled to distribution of any debtor property (or its value) in which they have an interest before any other creditors are paid. Even if the debtor has filed under chapter 11 or 13, a secured creditor is still entitled to receipt of their collateral or its value. Under Article 9 of the Uniform Commercial Code (“UCC”), commercial tort claims and their proceeds may collateralize secured liens. Hence, creditors believing they are secured by a debtor’s commercial tort litigation proceeds may expect to receive the protections the Bankruptcy Code grants secured creditors. However, creditors’ receipt of those protections is contingent upon the answers to two important questions. One, did the proceeds arise from commercial tort or breach of contract litigation? Two, are the proceeds properly attached to the creditor’s interest and therefore part of the creditor’s collateral to begin with? This article, in examining those two questions, will answer in the affirmative the larger question of whether, in bankruptcy, a creditor may recover a debtor’s commercial tort litigation recovery through a security interest. Part I will analyze the two most common tests courts use to distinguish commercial tort actions from breach of contract actions. Part II will analyze the UCC’s requirements for a collateral description which includes the proceeds of a commercial tort action

    “You Don’t Bring Me Flowers Anymore”: President Clinton, Paula Jones, and Why Courts Should Expand the Definition of “Adverse Employment Action” Under Title VII’s Anti-Retaliation Provision

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    (Excerpt) Anti-discrimination statutes such as Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (“ADA”), and the Age Discrimination in Employment Act (“ADEA”) prohibit discrimination based on individuals’ protected characteristics. In addition to prohibiting this type of status-based discrimination, these statutes also prohibit employers from retaliating against employees who assert their rights under the statutes or who assist others in asserting their rights. Over the past several years, retaliation charges filed with the Equal Employment Opportunity Commission (“EEOC”) have made up an increasingly high percentage of all charges filed with the agency. Specifically, in 2020, retaliation charges accounted for 55.8% of the charges filed with the EEOC. Ten years earlier, only 36.3% of the charges alleged retaliation, and ten years before that, only 27.1% of the charges alleged retaliation. The Supreme Court noted this increase in retaliation charges in University of Texas Southwestern Medical Center v. Nassar, where the Court observed the following: [C]laims of retaliation are being made with ever-increasing frequency. The number of these claims filed with the Equal Employment Opportunity Commission (EEOC) has nearly doubled in the past 15 years—from just over 16,000 in 1997 to over 31,000 in 2012. Indeed, the number of retaliation claims filed with the EEOC has now outstripped those for every type of status-based discrimination except race. Although the Court in Nassar intimated this increase might be the result of frivolous claims, the numbers demonstrate that, even if there are some frivolous retaliation claims, retaliation—or at least the perception of it—is still an important issue for American workers


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