March 15, 2021 - Last week, Richard Levin of Jenner & Block organized and prepared a fascinating look at the “Bankruptcy Jurisprudence of the Supreme Court” under the leadership of Chief Justice John Roberts.  Rich, who is one of the two principal drafters of the 1978 Bankruptcy Code (and who has been leading quarterly bankruptcy review webinars for LSTA members for years), was joined by Danielle Spinelli and Craig Goldblatt of WilmerHale.  Danielle and Craig are uniquely suited for this webinar, having argued some of the most important recent bankruptcy cases before the Supreme Court (and federal appeals courts) and represented the LSTA in a series of amicus briefs over the years. Rich began with some statistics.  Chief Justice Roberts has been in charge for 16 terms; during that time, the Court has decided 29 bankruptcy cases and eleven of those cases involved Chapter 11 corporate reorganization.  Thirteen decisions affirmed Circuit Court decisions, 15 reversed and, interestingly, seventeen of the decisions were unanimous.  Finally, debtors, creditors and bankruptcy estates were almost as likely to prevail in these cases as they were to lose.  The panelists then pivoted to principles: What statutory principles prevailed in these decisions?  The Court has overwhelmingly relied on the principle of “language, context and history”.  As the panelists explained, the Court has not relied solely on the statutory language of any particular Bankruptcy Code section in isolation.  Instead, the Court has looked at those statutory provisions in the context of how they fit into the overall structure of the Code and how the Code has codified hundreds of years of common law bankruptcy practice that preceded it.  Another important focus of the Court has been that the Code is principally meant to ensure a “fresh start” to debtors. As one important case stated, the “Bankruptcy Code provides diverse courses overburdened debtors may pursue to gain discharge of their financial obligations and thereby a ‘fresh start’”.  A replay of the webinar and the attendant materials are available by clicking here.

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Market Advisory on FIRPTA

The LSTA published a Market Advisory which discusses the implications of The Foreign Investment in Real Property Tax Act (“FIRPTA”).