Electronic Voting Comes to the Bankruptcy Court
Released on PRNewswire a few days ago was a press release
about the first bankruptcy court order approving electronic balloting procedures in a Chapter 11 case. Using a system developed by claims agent Upshot Services LLC
, the Chapter 11 trustee for Pitt Penn Holding Company, Inc. obtained a court order allowing creditors to complete and submit their ballots using a website interface. Creditors can also use a paper ballot. The voting website is accessible here: http://www.upshotservices.com/pittpennvoting
. The order is available here: http://bit.ly/1sbWuAE
.See paragraph 20 for the language allowing the claims agent to accept votes by electronic, online transmission.
The advantage of using a system like this are obvious, and given the fact that technologies for obtaining electronic signatures are well established, this is a welcome step in reducing the amount of paper chapter 11 cases can generate.
Badmouthing the Bankruptcy Trustee and the First Amendment
As a Chapter 7 panel trustee, I sometimes annoy (to use a mild term) the occasional party - either because they don't understand the bankruptcy process, have an inflated sense of self-entitlement, or merely because my actions are inimical to their sense of well being. A California trustee, in a similar situation, found himself in the cross-hairs of a somewhat critical blogger
in a Ninth Circuit decision that defined the scope of a blogger's right under the First Amendment to publicly criticize a trustee's actions. Not just a bankruptcy case, the Obsidian Finance Group, LLC v. Cox
decision provides a road map to applying First Amendment decisions to online commentary.
Kevin Padrick was appointed as the Chapter 11 trustee for Summit Accomodators, Inc. shortly after it filed its Chapter 11 bankruptcy petition. He soon found himself within the cross-hairs of a Crystal Cox, who commenced blogging about the bankruptcy in a manner critical of Mr. Patrick (some examples: "the facts of what Kevin Padrick of Obsidian Finance did that was probably illegal are washed under the carpet, never to be seen again" and "He is smart and good at his job, which is apparently screwing people out of their money"). She accused Padrick of fraud, corruption, money-laundering and other illegal activities in connection with the Summit bankruptcy. In response, Padrick and his company, Obsidian Finance Group, LLC, sued Cox for defamation.
The underlying framework derives from two Supreme Court cases - New York Times Co. v. Sullivan and Gertz v. Robert Welch, Inc. In Sullivan, the Supreme Court stated that defamation against a public official is only actionable if made with "actual malice." The plaintiff must show that the writer published the statement with actual knowledge that it was false or with reckless disregard to the truth. Under Gertz, in a private defamation action mere negligence in making a false statement is sufficient to create liability. Padrick was arguing for an even more lenient standard, arguing that the Gertz negligence standard applied only to protect journalists, or, alternatively, where a matter of public concern was involved.
The District Court held that most of Cox's posts were constitutionally protected opinion, with the exception of one allegation - that Padrick had failed to pay taxes due from the bankruptcy estate. That claim went to a jury, which found in favor of Padrick. After Cox's motion for a new trial was denied, she appealed the case to the Court of Appeals for the Ninth Circuit, which held (a) that First Amendment protections were available to a blogger, (b) that Padrick was not a "public officer" but that the bankruptcy case was a matter of public concern, thus requiring a higher standard before liability could attach, and (c) that liability could not be imposed without a showing of fault or actual damages.
The Circuit Court started with analyzing whether Cox could avail herself of First Amendment protections, or whether those protections were limited to journalists. Citing to the Supreme Court case, Citizens United, as well as decisions in the Second, Third, Fourth, Eighth, and DC Circuits, the court held that a First Amendment distinction between the institutional press and other speakers is unworkable. In defamation cases, the speaker's status as a professional journalist is not relevant - First Amendment protections derive from the defamed party's status and the public importance of the matter being discussed.
The Court then turned to the question of whether the matter was of public concern. It held that it was. Padrick was appointed as a bankruptcy trustee of a company that had been accused of diverting funds from investors. His actions, and particularly the allegations that he was acting improperly in his position, were a matter of public concern. Accordingly, Padrick needed to prove that Cox had acted negligently in making her statements to obtain a judgment for actual damages incurred. Also, the jury could not award presumed damages, under Gertz, unless it found that Cox acted with actual malice.
The Court also considered whether Padrick, as a bankruptcy trustee, was a public official. If he was, then the stricter New York Times standard would apply to the entire case. The Court noted that Padrick was neither elected nor appointed to a government position, and did not exercise control over governmental affairs. He merely was appointed as a stand-in for a debtor in possession. As such, Padrick was not a public official for purposes of defamation law.
The case was remanded back to the District Court for further proceedings. So, perhaps, the matter will have to be retried, with Padrick having to prove either that Cox acted with actual malice, in order to obtain an award of presumed damages, or having to prove both that she acted negligently and also that he suffered actual damage as a result of her posts. As for me, I was told when I got into this business that Chapter 7 trustees need to have a thick skin.
Labels: Cox, defamation, Obsidian, Obsidian Finance, Obsidian Finance Group, Podrick
Mt Gox files for bankruptcy protection in Japan
that Bitcoin exchange Mt Gox has filed for bankruptcy protection in Japan, after disclosing that it lost about $480 million dollars in Bitcoin to hackers.
Labels: bank robbers, bitcoin, mt gox
Back to the Mattress: Mt Gox and the Future of Bitcoin
A true digital currency is the holy grail of the on-line world. Since the start of the Internet, a long series of folks have been trying to find the on-line equivalent of cash - some kind of digital token that is secure, easy to transfer and, for most of the people who have joined the hunt, anonymous. Bitcoin provides the latest foray into this arena, and the Bitcoin story provides the latest example of the basic truth that payment systems are always dependent on the support of a strong, trustworthy third party.
This truth applied to traditional currencies, like this:
Valued when their backing governments existed, when the government support failed so did the currency.
The digital world is no different. When "virtual" banks tried to build a business around Linden Dollars in Second Life, problems quickly developed. Customers of Ginko Financial
, an unregulated Second Life investment bank, swarmed the "doors" at the first hint of trouble, causing a run on the bank and its collapse.
The rapid increase of Bitcoin popularity is creating a similar dynamic. At one point the largest trader of Bitcoin, Mt Gox
started to encounter pronounced difficulties handling transactions as the result of regulatory issues. Customers started to move business to different exchanges, and on February 7 Mt Gox halted withdrawals
. Four days later, another exchange, BitStamp, also suspended withdrawals
, citing difficulties caused by denial of service attacks against its servers that could potentially affect the security of its transactions.
On February 24, Mt Gox shut down completely
. Customers might have lost up to $480,000,000. Although, Bitcoin value has been plunging as a result of the shutdown and other disturbances in the Bitcoin infrastructure. So, the actual loss might be significantly less.
As of today (February 26) visitors to its website received this informative and reassuring message:
February 26th 2014
Dear MtGox Customers,
As there is a lot of speculation regarding MtGox and its future, I would like to use this opportunity to reassure everyone that I am still in Japan, and working very hard with the support of different parties to find a solution to our recent issues.
Furthermore I would like to kindly ask that people refrain from asking questions to our staff: they have been instructed not to give any response or information. Please visit this page for further announcements and updates.
And so it goes.
The lesson, as I pointed out before, is that any currency, even a virtual one, requires a reliable and trustworthy controlling authority. An imaginary person
simply does not cut it.
Understanding Electronic Discovery: Its Not Just About Protecting Your Client
Reading a recent Massachusetts Lawyers Weekly, I spotted an item in the Bar Discipline column that highlighted the dangers of not staying up to date with technology. A litigation attorney, let's call him Paul, failed to understand the rules governing electronic discovery, resulting in his client deleting electronic data and the Massachusetts Board of Bar Overseers issuing a public reprimand.
Paul represented a client accused of taking confidential information with him when he left his employer to work for a competitor. Allegedly, the client had transferred the information from his old laptop to a new one, used a computer software program to delete the stolen information from the old laptop, and then returned the old laptop to his former employer. In late 2006, his former employer sued him, and obtained a TRO requiring the client to return to his former employee any information that he had taken. Instead of complying with the order, the client instead deleted the files from the new laptop. About five months later, plaintiffs' counsel advised Paul that they planned to file a motion to obtain turnover of the new laptop, and that documents on the new laptop had to be preserved. Paul did not advise his client not to delete relevant files from the new laptop, and his client subsequently deleted some additional files - although without Paul's knowledge.
Then, the court ordered the new laptop be surrendered to the plaintiff's IT expert. Notified of this event, the client told Paul that the new laptop contained confidential information belonging to his new employer and unrelated to the lawsuit. Paul advised his client that these documents could be removed from the laptop before turning it over. When the laptop was turned over, and the deletions discovered, the Court held that the client had engaged in spoliation of evidence.
Reading the reprimand didn't give me the impression that Paul was acting in bad faith - instead he had failed to comprehend the nature of the information on the computer and the need to keep all of the information preserved once the litigation commenced. Used to a paper world, he failed to anticipate and guard against a client who was tempted to delete information, and failed to understand that deleting information from a computer can leave a gap - showing that information was removed but leaving wide open the question of what the removed data contained. By issuing proper warnings to his client, being alert to the possibility of non-relevant trade secrets residing on the laptop, and following appropriate protocols to avoid the release of trade-secrets stored on the laptop, Paul could have avoided the damage to his client.
In its reprimand, the BBO indicated that Paul's failures violated his duty to provide competent representation. In 2012, the American Bar Association adopted revisions to the Model Rules of Professional Conduct
, including this language added to the commentary for Rule 1.1:
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology...
That's a simple change, but one attorneys should take to heart lest they, some day, end up like Paul. Massachusetts hasn't yet adopted the 2012 revision in its commentary to Rule 1.1, but the Massachusetts BBO clearly expects its attorneys to understand the new world of handling electronic evidence.
Backing Away From Those Messy Electronic Signatures
Back in August, the Judicial Conference for the United States Courts released for comments proposed amendments to the Federal Rules of Bankruptcy Procedure
, including revisions to FRBP 5005 that will effectively limit the types of electronic signatures usable on court pleadings.
Currently, the relevant part of FRBP 5005 reads:
Filing by Electronic Means.
A court may by local rule permit documents to be filed, signed, or verified by
electronic means that are consistent with technical standards, if any, that the
Judicial Conference of the U.S. establishes. A document filed by electronic
means in compliance with a local rule constitutes a written paper for the
purpose of applying these rules, the Federal Rules of Civil Procedure made
applicable by these rules, and § 107 of the Code.
Added in 1996, this provision allowed parties to file documents with electronic signatures, so long as the signatures conformed with the particular court's local rules. Different courts employed different requirements, some requiring that an original signature be scanned, with the attorney retaining the original signature. Others, such as my home court in Massachusetts, allowed use of a printed name, preceded by a /s/, to serve as a party's "signature" so long as the filing attorney maintained an original copy of the document with an original wet signature. Model Rules for Electronic Case Filing, approved in 2001, allowed use of an electronic signature in the "s/Name Here" format, but also required the filing attorney to maintain the paper document with the original wet signature. Wet signatures were still required for evidentiary purposes (particularly in the rare case involving subsequent criminal prosecutions) and, as a practical matter, requiring a wet signature made sure that the third parties, usually the bankruptcy debtors, were actually reading and signing the documents before their attorney filed them with the "s/Name Here" electronic signature. (Some of you commercial bankruptcy law types might look aghast at the possibility, but take it from a Chapter 7 trustee - that kind of thing happens all the time.)
The proposed revision is more specific, although it provides three alternatives:
(3) Signatures on Documents Filed by Electronic Means.
(B) Signature of Other Individuals. When an individual other than a registered user of the court’s electronic filing system is required to sign a document that is filed electronically, the registered user shall include in a single filing with the document a scanned or otherwise electronically replicated copy of the document’s signature page bearing the individual’s original signature.
[Alt. 1: By filing the document and signature page, the registered user certifies that the scanned signature was part of the original document.]
[Alt. 2: The document and signature page shall be accompanied by the acknowledgment of a notary public that the scanned signature was part of the original document.]
Once a document has been properly filed under this rule, the original document bearing the individual’s original signature need not be retained. The electronic signature may then be used with the same force and effect as a written signature under these rules and for any other purpose for which a signature is required in proceedings before the court.
In short, no more electronic signatures. The wet signature is scanned, filed electronically with the court, and then thrown away. Warm up those scanners people and hire some support staff to attach those scanned signature pages to your single filings. It strikes me as a lot of extra work. Option two allows the filing attorney to certify that the electronic signature is really the debtor's, which strikes me as problematic for the filing attorney if the debtor disclaims his or her signature later on. Perhaps an attorney desiring to save scanning costs might like this option if he is willing to keep those original wet signatures anyway. The third option has the same issue - plus it leaves open the question of how you file the notarization. E-notarizations are not exactly commonplace. Perhaps the rule should give filing attorneys a choice - scan and toss, or use the /s/ and retain the original.
More amazing is the complete lack of an approach allowing the use of true electronic signatures - electronic documents signed using a click-through process or using a Signature Capture Pad. The technology is available to create and maintain truly enforceable electronic signatures. Perhaps bankruptcy attorneys still aren't using that technology, and perhaps the vendors that serve bankruptcy attorneys haven't yet incorporated the available technology into their products, but they will if the rules accommodate it. These rules won't.
Those are my comments.
What do you think? Written comments are due to the Judicial Conference by February 15, 2014.
When You Don't List Copyright Infringement Claims in Your Bankruptcy Schedules You Lose Standing
"High up in the pristine White Mountains of Northern Arizona, is a place where...truth and honesty are hard to find, if at all.." [Fair use
] So starts Lynnell Levingston's 2008 memoir
of politics in Springerville, Arizona. In 2009, Livingston sued a host of defendants asserting, among other things, that one of them violated her copyright in the book by plagiarizing an excerpt from the book in a police incident report. That initial case was dismissed in 2010, without prejudice. Levingston also maintained a blog called Three Men Make a Tiger
. In August 2012, Levingston filed a second complaint for copyright infringement alleging the defendants made and distributed copies of the book and content from the blog without authority or license.
But, in 2009, after filing her first lawsuit, Levingston had filed a pro-se chapter 7 bankruptcy petition. She had listed the book as an asset, but had not scheduled the blog as an asset, nor had she listed as assets the claims for copyright infringement.
In a short decision
issued in Levingston v. Earle
, 2013 WL 6119036 (D. Ariz. 2013), District Court Judge Teilborg dismissed the copyright claims reasoning that because the copyright infringement claims had not been listed as assets in the bankruptcy case, they remained property of the Chapter 7 bankruptcy trustee. Thus, they were not Levingston's property and she lacked standing to bring the infringement actions.
The case seems to have some fascinating undertones and complications. I can't say I could follow them all, but the underlying legal proposition remains clear - if you think someone has infringed your copyrights, make sure you list them on your bankruptcy schedules.
Qimonda Decision Affirmed But Fourth Circuit Won't Say Whether Denying Section 365(n) Protections Manifestly Contrary to U.S. Public Policy
The Court of Appeals for the Fourth Circuit recently released its decision
in the ongoing debate over whether the Qimonda AG bankruptcy estate gets to ruin the world's semiconductor industry. For those unfamiliar with the complex, but important, Qimonda decisions, I'll refer you to California bankruptcy attorney Robert L. Eisenbach's excellent and comprehensive explanation
of the issues and history, as well as his earlier description
of one of the lower court decisions.
For those who recollect the basic background, when last seen the United States Bankruptcy Court for the Eastern District of Virginia had decided that bankruptcy code section 1522(a) required it to balance debtor and creditor interests in determining whether to apply section 365(n)'s protections to those patent licenses Qimonda AG was terminating, thus allowing the licensees to continue to practice the licensed patents. The bankruptcy court held that denying section 365(n) protections would be unduly detrimental to the licensees, creating a "very real" "risk to the very substantial investment the [Licensees]...[had] collectively made in research and manufacturing facilities in the United States" in reliance on the licenses.
The Court also determined that 365(n) protected a fundamental U.S. public policy promoting technological innovation and, failing to provided the licensees with section 365(n)'s protections would undermine that fundamental public policy. Thus, the U.S. statute needed to be applied in lieu of the default rules under German insolvency law.
On direct appeal to the Fourth Circuit, the Circuit Court affirmed. It noted that 11 U.S.C. 1522(a) allows the court to grant discretionary relief to a foreign representative under section 1521 only if the court determines that "the interests of the creditors and other interested entities, including the debtor, are sufficiently protected." Such discretionary relief can be granted subject to appropriate conditions. It also noted that 11 U.S.C. 1506 prohibits granting relief that is "manifestly contrary to the public policy of the United States."
Addressing first the question of applying section 1522(a), the Court of Appeals agreed with the bankruptcy court that section 1522(a) requires a balancing analysis, and further held that the bankruptcy court had properly exercised its discretion in applying that test. This was sufficient to affirm the decision below.
Turning, in its final pages, to the public policy issue, the Circuit Court stated that "by affirming the bankruptcy court, even though on its section 1522(a) analysis, we too necessarily further the public policy inherent in and manifested by section 365(n)." So, section 365(n) is designed to protect licensee rights as an expression of public policy - but, that was obvious and well known. Restating the fact is meaningless. Is denying section 365(n) rights to a patent licensee "manifestly contrary" to that policy? The bankruptcy court thought so, but the Court of Appeals seems less sure - failing in the final portion of the decision to directly address the question or state an opinion. And, one judge clearly did not want to discuss the point, declining to join in the last few pages of the otherwise unanimous decision on the grounds that it was "unnecessary dictum."
He was right. Perhaps this decision marks the end of the long standing Qimonda patent license debate. Perhaps not. The decision does help define the structures for judicial decision making in Chapter 15 cases, but fails to provide a definitive answer to the question of whether and how IP licensees retain the protection of 11 U.S.C. 365(n) in international insolvency cases.
O'Say it's not So: Virginia Judge O'Grady Rules Domain Names are not Property Saleable By a Chapter 7 Trustee
Courts do not agree on the issue of domain names as property. Some courts treat domain names as a contract right
between the domain name holder and the registrar. Other courts recognize domain names as a separate form of intangible property
. But, until now, courts have all agreed that domain names are, in fact, property, and encompass a property right that can be transferred by a bankruptcy trustee.
In the Alexandra Surveys International, LLC
case, Federal District Court Judge O'Grady held that a domain name was not a property right that could be sold by a chapter 7 trustee, particularly when the domain name registration agreement would have been automatically rejected under 11 USC 365(d)(1). The case had an unusual set of facts. The debtor filed a chapter 11 petition on March 3, 2010. At that time, it owned the domain name "ALEXANDRIASURVEY.COM" but did not disclose the domain name in its bankruptcy schedules. The case converted to chapter 7 on January 27, 2012, and eventually closed. After the bankruptcy case closed a new company started by the debtor's principals, Alexandria Surveys, LLC, acquired the domain name
. The decision doesn't state whether the original domain name registration had lapsed, and the name re-registered, or whether the debtor had managed to assign the name to Alexandria Surveys, LLC in some manner. A month later, a third party filed a motion to reopen the case and offered to buy from the chapter 7 trustee the previously undisclosed domain name and other assets of the estate. The bankruptcy court allowed the motion to reopen, and, over Alexandria Surveys, LLC's objection, allowed the sale of the domain name and other assets. Because the domain name and other assets had not been disclosed by the debtor to the chapter 7 trustee, they remained property of the bankruptcy estate notwithstanding the case's closure.
On appeal, the District Court held that the domain name was not property of the bankruptcy estate saleable by the chapter 7 trustee. Bound to follow the Virginia Supreme Court's earlier decision in Network Solutions v. Umbro International
, the court concluded that "because Virginia does not recognize an ownership interest in ... web addresses, neither were property of Alexandria International's estate and neither were subject to sale by the trustee." The court stated further that even if the estate had an interest in the domain name, that interest was limited to the rights under the domain name registration agreement. The debtor's schedule G had listed web hosting contracts with Cox Communications, and the chapter 7 trustee had not assumed those contracts within the 60 day period dictated by 11 USC 365(d)(1). Thus, the interest was automatically abandoned by the trustee and could not be sold.
The decision, unfortunately, is riddled with errors. First, it miss-characterizes the holding in Network Solutions v. Umbro International, which defines a domain name as a contractual property right. The decision cannot be properly read to hold that a domain name is not property at all. Second, it assumes that the domain name contract is executory in nature, which while possibly the case can't be determined without reviewing the actual contract. Third, a review of Verisign''s list of authorized domain name registrars
indicates that Cox Communications is not a domain name registrar. So, even if the debtor had purchased website hosting services from Cox Communications, it's domain name registration agreement was not with that company. Its domain name registration agreement must have been with some other, unknown, company. Thus, the executory contract was not properly disclosed. Fourth, even though the undisclosed registration agreement might have been automatically rejected under section 365(d)(1), that does not necessarily act as a termination or abandonment of the agreement. Chapter 7 trustees can, with the cooperation of the non-debtor party, assume and assign previously rejected agreements. Finally, the decision completely ignores the possibility that the debtor's principals had, post-petition, transferred the contract rights to their new company instead of allowing the domain name registration to lapse and then re-registering it. In that case, the Trustee would have a right to recover the property interest both under sections 542 and 549.
The most troubling aspect of the decision is the language stating bluntly that a domain name registration is not estate property. Fortunately, the conclusion does not find support in other cases and also runs contrary to the proper interpretation of Network Solutions v Umbro International. Domain names are property
, and can be administered in a bankruptcy case.
Labels: alexandria surveys, domain names, kremen v cohen, umbro
Good Stuff Cheap
In the bankruptcy world, matching sellers of distressed assets with potential buyers has always caused difficulties - usually resulting in reduced sale prices and relative bargains. For large capital assets - like the Polaroid patent portfolio
, or Chrysler
, investment bankers satisfy the market gap. Selling smaller assets, like automobiles, time shares or necklaces, presents a more recalcitrant problem. The sellers are fragmented, a broad spectrum of individual chapter 7 trustees, receivers, and other liquidating agents, each with only a small number of items to sell. Further, court rules and procedures governing insolvency processes limited sellers' ability to use many traditional sale mechanisms.
Years ago, the National Association of Bankruptcy Trustees
developed the bankruptcysales.com website, as a service to chapter 7 bankruptcy trustees to help them locate buyers for various assets. The website contained listings for available assets providing information for buyers to locate items of interest. But, the website was poorly structured and provided limited benefits.
The NABT has now updated the website, renaming it MarketAssetsForSale.com
, and expanding its scope, allowing receivers, assignees, banks and others who need to sell distressed assets to list their assets for sale. The website is not an auction mechanism or marketplace, like Bid4Assets
, but a resource to help buyers locate assets for sale through insolvency processes. The assets themselves are sold through the traditional sale processes. Chapter 7 trustees and some others can post assets for free, others will have to pay a fee. Sellers and potential buyers do need to set up an account to access the website - buyers have to pay an annual fee of $120.00.
The new site has a much better interface than the old website, with nifty pictures of assets, a cleaner interface, and better tools for searching for assets. Hopefully, with the improved interface more bankruptcy trustees will post assets to the website, and with a broader scope of available assets more buyers will find the website a useful tool for locating the Good Stuff they want Cheap.