No Good Men?

SHERRY F. COLB

Cornell law professor Sherry F. Colb comments on a film called “Promising Young Women,” which purports to be a feminist movie about date rape. While Professor Colb describes the movie as interesting, thought-provoking, and “definitely” worth seeing, she argues that it suggests a view of men and sexual assault that is erroneous and potentially even anti-feminist.

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Last Call at the Bar: Grading the Briefs in Trump Impeachment 2.0

DEAN FALVY

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, offers thoughts on the legal tactics and briefs filed by each side in former President Trump’s second impeachment trial. Mr. Falvy argues that if Trump can survive a second impeachment vote, it will show that he is still operating where he has always believed himself to be: well beyond the reach of the law.

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Deutsche Bank Trust Co. v. U.S. Energy Development Corp.

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-50646

Opinion Date: February 3, 2021

Judge: Edith Hollan Jones

Areas of Law: Bankruptcy, Commercial Law

Texas and Oklahoma oil and gas producers challenge the bankruptcy court's grant in part and denial in part of Deutsche Bank's motion for partial summary judgment in a lien priority dispute. The competing security interests arose out of proceeds from the sale of oil that debtor purchased from appellants before declaring bankruptcy. The Fifth Circuit affirmed the bankruptcy court's order, holding that the bankruptcy court did not err in holding that the warranty of title did not waive the Producers' rights to assert a lien under either Texas UCC 9.343 or the Oklahoma Lien Act; because the warranties did not waive Producers' claims to proceeds in the hands of debtor, the Bank's reliance is misplaced on cases where producers attempted to collect from purchasers downstream of the first purchasers; and following Fishback Nursery, Inc. v. PNC Bank, N.A., 920 F.3d 932, 939-40 (5th Cir. 2019), Delaware law governs the competing priorities under either Texas choice of law or the federal independent judgment test. The court affirmed the bankruptcy court's conclusion that the Bank's interests in the disputed collateral prime any interests held by the Texas Producers. Furthermore, the bankruptcy court correctly dismissed the Producers' affirmative defenses of estoppel, unclean hands, and waiver.

In re Murray Energy Holdings Co.

Court: US Court of Appeals for the Sixth Circuit

Docket: 20-8017

Opinion Date: February 1, 2021

Judge: Wise

Areas of Law: Bankruptcy, Civil Procedure

Coal companies (last signatory operators) must provide health and retiree benefits through individual employer plans (IEPs), 26 U.S.C. 9711(a), (b); the 1992 Plan provides benefits for retirees who do not receive benefits through a company’s IEP, section. Last signatory operators fund and provide security for the 1992 Plan. If the 1992 Plan assumes responsibility for IEP benefits, the Plan may assert that a prior employer must pay the benefits. A CONSOL entity sold mining operations to Debtors in 2013. Debtors provided healthcare and retiree benefits to about 2,200 Beneficiaries under an IEP. Debtors filed chapter 11 petitions in 2019, having negotiated agreements that compelled Debtors to minimize their liabilities to the Beneficiaries. To address the Coal Act obligations, the Trustee appointed a committee to represent Debtors’ retirees. Debtors and the Retiree Committee ultimately agreed that the parties would cooperate to transition the Beneficiaries from the IEP to the 1992 Plan to assure no coverage gap. The 1992 Plan would receive $12.5 million from the posted security. Debtors would cooperate in the Plan’s efforts to hold CONSOL responsible as the last signatory operator for those Beneficiaries who transferred to Debtors in 2013. The bankruptcy court approved the Settlement over CONSOL’s objection and confirmed Debtors’ Chapter 11 Plan. The order reserved CONSOL’s right to dispute its potential Coal Act liability for the Benefits, stating that its approval of the Settlement "in no way constitutes a finding that CONSOL is the last signatory operator.” The Sixth Circuit Bankruptcy Appellate Panel dismissed an appeal, finding that CONSOL lacks standing. Whether an order directly and adversely affects an appellant’s pecuniary interests is interpreted narrowly; “person aggrieved” standing does not arise from concerns about separate litigation unrelated to an interest protected by the Bankruptcy Code.

Carpenter v. Amos

Court: US Court of Appeals for the Eighth Circuit

Dockets: 20-6007, 20-6015

Opinion Date: February 1, 2021

Judge: Shodeen

Areas of Law: Bankruptcy

The Bankruptcy Appellate Panel affirmed the bankruptcy court's entry of summary judgment in favor of Flesner Wentzel, debtor's ex-wife's attorney, and confirmation of debtor's Sixth Amendment Chapter 13 plan. On de novo review, the panel identified no error in the bankruptcy court's conclusion that the attorney fees imposed on debtor by the state court are domestic support obligations under the bankruptcy code and are therefore not dischargeable pursuant to 11 U.S.C. 523(a)(5). In this case, the bankruptcy court engaged in a specific and detailed analysis of the undisputed facts and legal authority. Therefore, confirmation of debtor's Sixth Amended Plan that provided for priority treatment of Flesner's attorney fee claims as domestic support obligations was appropriate.