(My Favorite Homemade Blog Photo: Justice Gorsuch’s Trans Am from In re Haberman with Judge Garland Looking On)

February 12, 2024 will mark Plan Proponent’s 9th Anniversary. Back in the early days, I’d be holed-up in Jessica’s parents’ basement in Potomac on New Year’s Eve preparing a Year in Review Top 10 List. Of course, that was back when I posted more than ten posts per year. While the post total is now 132 posts, my productivity has dropped off over the years and, thus, I’m embarrassed to admit that I haven’t done a year-end Top 10 list since January 2020.

Quality over quantity, right? Anyway, to force myself to do something even “bigger” for the 10th Anniversary and to save the Justice Sandra Day O’Connor tribute post for later in January, here are my Top 10 favorite (i.e., most readable, least boring) Plan Proponent blog posts.

Thanks for nine years of support and Happy New Year!

10. ABI Commission Report – Small and Medium-Sized Debtor Enterprises

Remember the 402-page ABI Commission Report from 2014? Well, that Report is what started it all for Plan Proponent with its first ever post on February 12, 2015. Ridiculously, I blogged about every single confirmation-related page of that Report, from February 12, 2015 to August 15, 2015, a total of 23 separate posts!

In hindsight, I like the Small and Medium-Sized Debtor Enterprises (SME) post the best because not only was it the last post in an exhausting, “put it out of its misery!” series, but it also provided a primitive preview of what later became Subchapter V almost 5 years later with the SBRA. Sixty days to file a plan? Yikes!

9. David Cassidy and the Absolute Priority Rule

Speaking of the SBRA, the absolute priority rule (APR) posts haven’t aged well and have lost much of their relevance now that so many individual Chapter 11 cases are Sub V cases where (thank God) the APR no longer applies.

But back in 2014, when I was a wee associate, I literally read every single APR opinion ever written for individual debtors to help my longtime mentor Ward Stone prepare for an APR panel for ABI Southeast 2014. That resulted in our APR Case Chart (lasted updated 02/13/17).

And for Plan Proponent’s second ever post, the late David Cassidy (of Partridge Family fame) provided an excuse to leverage the Chart when he filed his Florida Chapter 11 case on February 11, 2015. I revisited it on the blog’s 2nd anniversary in early 2017 when his plan confirmation litigation started. Unfortunately, Cassidy died later that year.

8. Baker Botts SCOTUS Series

I like to joke that, for a year or so, I was the leading expert on the U.S. Supreme Court’s 2015 Baker Botts, L.L.P. v. ASARCO, LLC “fees for fees” bankruptcy opinion wherein the Court held that professionals employed under § 327(a) may not, under § 330(a), recover as compensation fees incurred in defending their fee applications. What that really means is that, for a year or so, I had an unhealthy obsession with Baker Botts, a case that took § 327 professionals by storm but is now rarely mentioned.

But while my instinct is to make fun of myself, the Baker Botts experiment, no matter how irrelevant Baker Botts is today, did provide some minor publishing opportunities and a few run-ins with legal journalists who were seeking soundbites about such an esoteric decision.

7. Book Excerpt: A Southern Lawyer’s Lunch with Harvey Miller

Growing tired of bi-weekly case summaries, I was honored in 2017 when my friend and Atlanta bankruptcy lawyer Doug Ford let me post an excerpt from his self-published book  I Do My Own Stunts: Finding My Way as an Attorney. And while the Harvey Miller “clickbait” was irresistible, I really like Doug’s story about meeting Harvey in NYC.

6. Justice Thomas Crashes a Bankruptcy Breakout Session

Chief Judge Austin Carter (Bankr. M.D. Ga.)—who supplemented my bankruptcy training from Ward by teaching me everything I know about day-to-day Chapter 11 practice when he was my Stone & Baxter colleague—was nice enough to invite Jessica and me to the 2016 Eleventh Circuit Judicial Conference in Point Clear Alabama.

Typed-up from my hotel room on the last day of the Conference, this post not only covers all of the inevitable pomp and circumstance of collecting an entire circuit of federal judges in a single hotel, but also portrays a charming and jolly Justice Thomas. As federal judges are prone to enjoy, the Conference invited an Abe Lincoln impersonator to provide entertainment during lunch. He was in character for the entire lunch and Justice Thomas loved it. The post also tells of our personal encounter with none other than one of President Obama’s potential SCOTUS nominees—perhaps the most humble and unassuming judge at the conference.

It’s a fun, almost bankruptcy-free read.

5. Forcing Bankruptcy Relevance on SCOTUS Nominees

The U.S. Supreme Court has such a disdain for bankruptcy that bankruptcy is one of the few areas that the Justices almost always agree about. Thus, when President Obama threw up one last nominee in Judge Garland and President Trump was nominating potential Justices on a seemingly weekly basis (including now Justices Gorsuch and Kavanaugh), I really enjoyed forcing a bankruptcy angle on these nominees, tongue-in-cheek or otherwise.

  • Click here for the Judge Garland post
  • Click here for part 1 and here for part 2 of the Justice Gorsuch post
  • Click here for the Justice Kavanaugh post

The photoshopped picture above, which I used on Twitter X but was too bashful (until now) to use on the blog, is Burt Reynolds (disguised as Justice Gorsuch), with a wishful Judge Garland looking on, wondering what could have been. And the Trans Am is from In re Haberman, with (now) Justice Gorsuch introducing a bankruptcy opinion like no one else can:

At one level, this is a dispute over loan payments secured by a nearly 30 year old Pontiac Trans Am. At another level, this case tests the limits of a bankruptcy trustee’s statutory power to displace existing lienholders.

4. Baseball Bankruptcies in October Series

But for the depth of work and/or sentimentality that characterize my top three favorites, the Baseball Series will always be my favorite. I love October Baseball and it just so happens that it has featured recently-bankrupt teams (the Chicago Cubs and the L.A. Dodgers) and a “bankruptcy-adjacent” team (the Houston Astros).

And while baseball games are now supposed to be shorter in duration, the pre-2023 World Series games provided plenty of time for in-game blogging:

  • Click here for the Chicago Cubs post that started the series
  • Click here for the L.A. Dodgers post
  • Click here for the Houston Astros post

3. Justice Antonin Scalia’s Bankruptcy Opinions

3. Justice Ruth Bader Ginsburg’s Bankruptcy Opinions

I can’t choose between these two tributes and, because Justice Scalia and Justice Ginsburg were such unlikely friends from opposite ends of the spectrum, I won’t. I got lucky that such historically-important and larger than life justices also had such a significant bankruptcy footprint. In many ways, these bookend posts define the blog for me.

2. History of Law Firm and Professional Websites

The three-part New Years 2023 series on the history of professional websites (going back to the 90s) was an insane labor of love that took more than two years of off an on work to complete. At one point, I think I was hitting the Wayback Machine site so frequently that I literally shut it down.

But that site revealed an Easter Egg of all Easter Eggs when I uncovered the long lost King & Spalding “2001 Blooper Reel” video that was buried in the archive of its old website.

Anyway, these posts are loaded with nostalgia.

  • Click here for Part 1
  • Click here for Part 2
  • Click here for Part 3

1. Judge W. Homer Drake, Jr. Series

At least in Georgia, we’ve all been riding Judge Drake’s coattails for decades. And it goes beyond Georgia because so many people reached out to me after I posted this series—not about the series or even the cases summarized in the series, but Judge Drake himself, the judge who the American College of Bankruptcy describes as the longest serving bankruptcy judge in history and one of the longest serving federal judges ever.

Sadly, Judge Drake died about a year later. It’s only fitting, then, that I road Judge Drake’s coattails one last time last March when the Southeastern Bankruptcy Law Institute asked me if I’d participate in the SBLI’s luncheon honoring Judge Drake. As many of you know, Judge Drake founded SBLI in Atlanta in 1974. In fact, it will celebrate its 50th year this year.

SBLI thought that Judge Paul Bonapfel was giving the keynote tribute to Judge Drake, with me giving only a short introduction. Thus, I’m sure its planners were understandably surprised and nervous when Judge Bonapfel switched the order a week prior and asked me to do it. On the one hand, I’m easily the least distinguished person to ever tribute Judge Drake in public. On the other hand, that neat opportunity would have been unavailable without this blog and Judge Bonapfel’s generosity.

Bonus: A Tribute to Jerome L. “Jerry” Kaplan

This might not be your favorite, but I’d be remiss not to mention the post that is dearest to my firm and me. And that is my tribute to Jerry Kaplan, who happened to be friends with Judge Drake going way back. Naturally, this tribute turned into a history of Stone & Baxter and its predecessors going back 60 plus years. They just don’t make lawyers like Jerry anymore.

And so there you have it, my favorite posts. If you’d like to know about other times when I occasionally post something other than boring case summaries, then you can subscribe to Plan Proponent via email here.

With no introduction or fanfare, here, in a single post, are short summaries of October 2023’s and November 2023’s notable Subchapter V opinions from across the country.

As in the prior Sub V case posts, I’ll provide a roadmap of the issues and then you can click the opinions if you want to dig deeper.

Happy New Year!

Continue Reading Notable Subchapter V Bankruptcy Opinions: October and November 2023 Edition
(Artwork by William Hennessy)

On Monday, the U.S. Supreme Court heard oral argument in the Purdue Pharma bankruptcy appeal and, as a result, we might be approaching a mid-2024 “finish line” for an issue that some bankruptcy practitioners, professors, and judges are on the edge of their seats about: Do bankruptcy courts have authority under the Bankruptcy Code to approve non-consensual third-party releases, such as the release that the Sacklers are proposing to pay $6 billion for?

Of course, it’s not just a bankruptcy issue. Indeed, there is an inconceivable number of claims pending against Purdue Pharma (who is in bankruptcy) and the Sackler family (whose members are not in bankruptcy) from the opioid epidemic. Depending on one’s view or standing in the case, the proposed release is essential to a meaningful recovery or it’s unconscionable and legally improper.

This SCOTUSblog.com article correction illustrates that the outstanding claims are approaching, if not in excess of, the total amount of available worldwide currency!

Correction (Dec. 5 at 7:43 a.m.): An earlier version of this article incorrectly reported that there are $40 billion in lawsuits against Purdue and the Sacklers. The number is $40 trillion.

I’d be exaggerating if I claimed to have covered this appeal closely from the start. In fact, it took Lisa Geary to remind me yesterday that the Court heard oral argument four days ago. Lisa is a brilliant appellate lawyer by way of New York who is now in my original home state of Arkansas, and who I have the honor of working with on a pending Second Circuit appeal. (I also mention Lisa to show that the Purdue issues—the procedural and substantive issues as well as the public policy issues and issues of national-level appellate tradecraft—have captured the attention of bankruptcy- and non-bankruptcy lawyers alike.)

And so while I regret not following the appeal as closely as I would have liked to follow it, I’ve at least tried to stay on top of its important milestones: the District Court’s rejection of the proposed Sackler release (here) and the Second Circuit’s affirmance of that release (here).

Following that approach, here are some useful links if you want to dig deeper into the Supreme Court proceeding and Monday’s oral argument:

I listened to the argument in the car, to and from work.

From the questioning, the ultimate tension is between (i) can we approve this release and (ii) don’t we have to approve the relesae if the victims are going to get a meaningful recovery? And if we link it to the central Bankruptcy Code provision at issue, is the proposed Sackler release an “appropriate [Chapter 11 plan] provision” under 11 U.S.C. § 1123(b)(6) that is “not inconsistent with the applicable provisions of” the Code?

This morning, I reached out to Prof. Melissa Jacoby at UNC Law, who has followed the Purdue Pharma and other recent mass tort bankruptcy cases very closely. She was also nice enough to give Plan Proponent quotes for the District Court and Second Circuit milestones in ’21 and ’23.

And after listening to the justices go back and forth for almost two hours, I agree with Prof. Jacoby that, while the “marketplace [is] flooded with quick takes,” the “argument defied an easy conclusion.” Additionally, Prof. Jacoby suggested the following points (which I’ll leave you with and will consider when reading over the written transcript):

  • The “oral argument was all over the place in terms of legal issues and factual assumptions and focal points.” 
  • The justices’ “queries far exceeded the question presented regarding statutory authority for nonconsensual liability shields.” 
  • “Anyone who is sure about how the court is going to rule, and the breadth of the ruling, has a better crystal ball than I do.”
  • “I thought that Justice Amy Coney Barrett and Justice Brown Jackson asked the most well-informed questions in terms of the factual record, the statutory provisions at issue, and the overall dynamics.”

With a little help from friends, I’ll continue to watch this appeal as it wraps up.

If you’d like to stay on top of this and other important bankruptcy issues, then you can subscribe to Plan Proponent via email here.

Eight years ago, in Plan Proponent’s inaugural year, I did my first and, until today, only pure Thanksgiving post (including now 13 year old Kate B’s above turkey art). For 2021 Thanksgiving, I posted Part 3 of the Judge Drake Tribute Series, but that doesn’t count.

A pure post is difficult. While “Thanksgiving” is often referenced in bankruptcy opinions, I had to dig deep in 2015 for something relevant and interesting. That post included filing statistics from 2005 to 2015; cases addressing cutting edge issues about whether “Black Friday” is a holiday for Rule 9006 purposes; and a reference to a 2015 Thanksgiving Day newspaper article about a Florida bankruptcy lawyer who has, since 2011, performed as “Chuckles the Clown” in the Macy’s Thanksgiving Day Parade.

Unfortunately, the well has run dry since 2015 on interesting Thanksgiving-related bankruptcy stuff. Thus, click here for the original post (it’ still pretty good) and enjoy these updated, live filing stats since 2015.

Happy Thanksgiving!

YearCh. 7Ch. 11Ch. 13APTotals
201626026658
201758028288
201870021192
201956024282
202031016249
202119112032
20221808026
202310102
Totals279113613429

If you’d like to stay on top of other important bankruptcy issues, then you can subscribe to Plan Proponent via email here.

There were no Sub V opinions in August that I could find, so I’ll pick-up with the September opinions. And by now, you know the drill: I’ll provide, in a single post, short summaries of each month’s notable Subchapter V opinions from across the country (which basically means all Sub V opinions from that month). Rather than providing all-encompassing summaries, I’ll provide a roadmap of the issues and then you can click the opinions if you want to dig deeper.

Sorry that I got behind, but here are the September Subchapter V opinions:

Continue Reading Notable Subchapter V Bankruptcy Opinions: August and September Edition

Plan Proponent has been on an unplanned, one month hiatus due to competing client demands. But today I get a break, as I’m hanging out in Chicago this weekend with my best friend who retired at 46 and travels around the country, nomad style.

This month, he and his wife are in residence 47 floors up in the heart of Chicago. Saturday, we’ll watch Georgia/Florida from four states away. To tide us over this afternoon, these still-disappointed Braves fans toured Wrigley Field. It was awesome.

Thus, to kick-start the blog, I figured I’d revisit my very favorite posts—the “Baseball in October” posts. So, in case you missed it seven years ago to the month, here’s one of them, my Chicago Cubs Bankruptcy post from 2016 when the Cubs were (finally back) in the World Series and ended a 108-year draught by beating the Cleveland Indians Guardians in Game 7 (an instant classic) and in one of the greatest World Series of all time.

Of course, my hook was the Cubs’ short bankruptcy. Click the link and enjoy this re-posting:

October 2016 Cubs Bankruptcy Post

If you’d like to stay on top of other important bankruptcy issues, then you can subscribe to Plan Proponent via email here.

This morning, I presented, along with Judge Paul Bonapfel (Bankr. N.D. Ga.) and Rob Matson (a Sub V Trustee in the M.D. Ga.), the Subchapter V Update for the Middle District of Georgia Bankruptcy Law Institute. So, call me lazy, but it’s only fitting that we revisit Subchapter V issues based on this morning’s presentation. Click here for the prior Sub V quiz.

Click the image below to take the quiz. Have a nice weekend!

P.S. I’m happy to report that the average score on the September 9 “easy” quiz was 75% (the highest average to date).

Click here for prior quizzes.

If you enjoyed this post and would like to be the first to hear about new Bankruptcy Quizzes and other Chapter 11 updates, then you can subscribe to Plan Proponent via email here.

We’re on our firm retreat at Lake Oconee this weekend. Thus, I figured an “easy” quiz is appropriate for what I hope is an easy weekend for everyone. To guarantee it’s easy, I poured over the last 10 quizzes and selected prior questions that 75% or more of takers got right. Click the image below to take the quiz. Have a nice weekend and Go Dawgs!

Click here for prior quizzes.

If you enjoyed this post and would like to be the first to hear about new Bankruptcy Quizzes and other Chapter 11 updates, then you can subscribe to Plan Proponent via email here.

In this post, I’ll continue in my effort to provide, in a single post, short summaries of each month’s notable Subchapter V opinions from across the country. Rather than all-encompassing summaries, I’ll provide a roadmap of the issues and then you can click the opinions if you want to dig deeper. Here are the July 2023 Subchapter V opinions. Assuming my search was thorough enough, there were only two opinions in July:

Continue Reading Notable Subchapter V Bankruptcy Opinions: July 2023 Edition

Here’s this week’s Bankruptcy Quiz, with an emphasis on Chapter 5 avoidance actions. Click the image to take the quiz. Have a nice weekend!

Click here for prior quizzes.

If you enjoyed this post and would like to be the first to hear about new Bankruptcy Quizzes and other Chapter 11 updates, then you can subscribe to Plan Proponent via email here.