Meeting the Objectives of the MDA: Implied Preemption of State Tort Claims by the Medical Device Amendments

This article attempts to reconcile the competing purposes of the MDA, and to offer one alternative to effectuate Congress\u27 purposes without preempting some claims and permitting others. First, this article will describe the arrangement of the MDA, including the classification provisions for medical devices and the preemption provision of the MDA. Next, this article will interpret the caselaw regarding preemption in general, and specifically preemption of state tort claims by the MDA. Finally, this article seeks to reconcile two competing purposes of Congress in enacting the MDA through implied preemption of state tort claims, with exceptions for devices which have never been subjected to the Food and Drug Administration\u27s (FDA) pre-market approval process, or for which such approval was gained fraudulently

With Malice Toward One? – Defining Nondischargeability of Debts For Willful and Malicious Injury Under Section 523(a)(6) of the Bankrupcy Code

The federal bankruptcy system strikes a balance between the rights of debtors seeking a fresh start and the rights of creditors seeking repayment for debt. While many areas of the Bankruptcy Code provide examples of this balancing act, perhaps no area of the Code embodies this balance better than discharge of debt. Discharge of debt provides the fresh start for debtors on which the bankruptcy system rests, but the Code also protects the interests of creditors who would otherwise have their claims against the debtor discharged. Section 523(a)(6) excepts from discharge any debt for willful and malicious injury by the debtor to another entity or to the property of another entity. Clearly, this section prohibits discharge for debts that result from a bad act of the debtor, and serves a punitive function by not allowing a debtor to use the bankruptcy system to avoid debts when the debtor acted wrongfully in incurring those debts. While the Supreme Court has had the opportunity to consider the definition of willful and malicious injury, it has done so only in the context of a tort claim, leaving courts to determine the applicability of § 523(a)(6) in the context of breach of contract claims. This article merges traditional tort doctrine regarding levels of intent to harm, traditional contract doctrine of efficient breach, and modern developments recognizing punitive damages in contract actions to conclude that § 523(a)(6) should permit nondischargeability of intentional breaches of contract that lack business justification

Keeping the Faith: The Rights of Parishioners in Church Reorganizations

Faced with significant potential liability to victims of sexual abuse at the hands of church personnel, four archdioceses and dioceses of the Roman Catholic Church have filed for Chapter 11 bankruptcy protection. The bankruptcy proceedings present a multitude of novel issues, including valuation of tort claims against the church and determination of the property available to pay those claims. While each issue has the potential to affect parishioners of the church, the issue of property ownership may have a particularly strong effect. Under both canon law and state incorporation statutes, an archdiocese or diocese owns all assets of its churches. Unless the diocese holds this property in trust for the benefit of its parishes, a claim against the diocese or archdiocese may be satisfied with any property located within any of its parishes, even if that property has no other connection to the claim. Such property may be the only means for tort claimants to receive a substantial recovery for their claims, but is also the only means for parishioners to fully practice their faith. This Article considers whether parishioners have a procedural right to represent their interests in a bankruptcy and concludes that parishioners have an interest in bankruptcy proceedings, but that their interest is not sufficient to allow them automatic participation in the bankruptcy proceedings. Rather, the courts will need to determine on a case-by-case basis whether the diocese or archdiocese adequately represents the interests of parishioners within the bankruptcy proceedings in order to determine the ability of parishioners to intervene

Keeping the Faith: The Rights of Parishioners in Church Reorganizations

Faced with significant potential liability to victims of sexual abuse at the hands of church personnel, four archdioceses and dioceses of the Roman Catholic Church have filed for Chapter 11 bankruptcy protection. The bankruptcy proceedings present a multitude of novel issues, including valuation of tort claims against the church and determination of the property available to pay those claims. While each issue has the potential to affect parishioners of the church, the issue of property ownership may have a particularly strong effect. Under both canon law and state incorporation statutes, an archdiocese or diocese owns all assets of its churches. Unless the diocese holds this property in trust for the benefit of its parishes, a claim against the diocese or archdiocese may be satisfied with any property located within any of its parishes, even if that property has no other connection to the claim. Such property may be the only means for tort claimants to receive a substantial recovery for their claims, but is also the only means for parishioners to fully practice their faith. This Article considers whether parishioners have a procedural right to represent their interests in a bankruptcy and concludes that parishioners have an interest in bankruptcy proceedings, but that their interest is not sufficient to allow them automatic participation in the bankruptcy proceedings. Rather, the courts will need to determine on a case-by-case basis whether the diocese or archdiocese adequately represents the interests of parishioners within the bankruptcy proceedings in order to determine the ability of parishioners to intervene

Members Only: Can a Trustee Govern an LLC When Its Member Files for Bankruptcy?

Limited-liability entities allow owners to limit their personal risk similar to shareholders of a corporation while enjoying the ability to operate the business more in the manner traditionally used for a partnership. These attributes have made these business forms increasingly popular business over the past few decades because they offer the best of partnership world—control and pass-through taxation—while also offering the best of corporate world—limited liability to all of its owners. But if financial problems arise for these businesses and their owners, bankruptcy may be the final option to remedy financial difficulties. The current bankruptcy code, adopted at the same time that LLCs first came into existence, has faced various issues involving these new business entities. This Article considers the ability of a bankruptcy trustee to govern an LLC when one of the members of the LLC files for bankruptcy protection. When a member of an LLC files a bankruptcy case, the member’s interests in the LLC transfer to the estate. These interests include the right for the member to be paid by the LLC, known as economic interests, as well as governance interests. Governance interests include the right to manage the business and non-management interests such as the right to vote or seek dissolution of the entity. The transfer of economic interests into the estate provides no risk to the non-debtor members of the LLC, and the bankruptcy code and state laws together make the debtor’s economic interest in the LLC available to pay creditors. But the transfer of governance rights to the trustee violates state law and threatens the fundamental “pick your partner” principle that governs LLCs. This Article concludes that bankruptcy cases allowing the trustee to take over a member’s governance rights, particularly in the context of a multi-member LLC, ignore fundamental principles of state business law and violate one of the essential aspects of the LLC—the ability for its members to choose their own managers

Meeting the Objectives of the MDA: Implied Preemption of State Tort Claims by the Medical Device Amendments

This article attempts to reconcile the competing purposes of the MDA, and to offer one alternative to effectuate Congress\u27 purposes without preempting some claims and permitting others. First, this article will describe the arrangement of the MDA, including the classification provisions for medical devices and the preemption provision of the MDA. Next, this article will interpret the caselaw regarding preemption in general, and specifically preemption of state tort claims by the MDA. Finally, this article seeks to reconcile two competing purposes of Congress in enacting the MDA through implied preemption of state tort claims, with exceptions for devices which have never been subjected to the Food and Drug Administration\u27s (FDA) pre-market approval process, or for which such approval was gained fraudulently