News 36 - College of Law

Bloomberg quotes Brubaker on roll-ups

Lenders to bankrupt firms are increasingly insisting upon controversial contract clauses known as roll-ups, which boosts investments by moving existing debt to the front of the repayment line. This kind of contract structure prioritizes existing debt repayment, potentially limiting the resources available for lower-ranking creditors. Despite their controversial nature, bankrupt firms and judges overseeing them are compelled to accept roll-ups to avoid complete closure. Although not a new tactic, roll-ups are becoming more prevalent, as seen in the Chapter 11 cases including Bed Bath & Beyond, Vice Media, and a significant deal with Rite Aid. Speaking with Bloomberg, Professor Ralph Brubaker pointed to the dominance of hedge funds and financial firms in negotiating these agreements and suggested rules prohibiting roll-ups might be necessary.

Read the full article on from Bloomberg Law.

Lawless critical of judge shopping in Wall Street Journal article on WeWork bankruptcy

WeWork’s recent Chapter 11 filing in New Jersey is the seventh large bankruptcy filing in the state since the previous November, as corporations increasingly choose the state as the destination to restructure their debt. New Jersey’s share of large bankruptcies nationwide has risen to 5%, partly due to the stability provided by consistent judges in New Jersey and partly due to rulings attractive to corporations. Professor Robert Lawless told the Wall Street Journal changes may be needed to address the perception that companies can freely choose where to file their bankruptcy petitions. “I can understand the reasons why companies are going to New Jersey, but I still think this rampant forum shopping undermines confidence in the courts,” he said. “Something needs to be done.”

Read the full article from the Wall Street Journal.

Lawless and Brubaker sign letter urging abolition of Texas bankruptcy court panel

A dozen academics, including Professors Ralph Brubaker and Robert Lawless, are urging the United States Bankruptcy Court to abolish the two-judge panel on a south Texas bankruptcy court that has earned a reputation as a key venue for large bankruptcy cases. The letter from the legal scholars to Chief Judge Eduardo V. Rodriguez comes as a result of media reports about undisclosed relationships between Judge David R. Jones and parties that appeared in his Texas bankruptcy court. Jones was the chief judge who created the two-judge panel to oversee complex cases, which was established in part because of “judge shopping” by companies within Texas’s jurisdiction. The two-judge panel became a target for the same practices, however, leading to “controversy and criticism for undermining public confidence in the chapter 11 system,” as the letter to Judge Rodriguez states.

Read the full letter to Judge Rodriguez urging the abolition of the Texas two-judge panel system.

Read a Law360 article quoting Professor Lawless about the controversy in the Texas court.

Remembering Judge Harold A. Baker ’56

Though many people are remembered for their personal achievements, the truly great individuals—those who are recalled fondly and for a long time—are those who bring out the best in others. Judge Harold A. Baker ’56, who died on September 18, certainly was that kind of person. In every memorial and obituary written, those who knew him have recalled his ability to elevate those around him to their best selves.

“He treated younger people, including me, as sitting at the table right there with him,” Richard Pope ’79 recalled about Baker. “He had more experience, and there were times when he pulled rank of course, but…he considered you to be an equal.

“He was fair. He treated everybody with respect: every party, every lawyer, every juror.”

Baker was born in Mt. Kisko, NY, on October 4, 1929, but came to Illinois to finish his bachelor’s degree and made a home here. He graduated in 1951 and enlisted in the Navy, serving two years during the Korean War, reaching the rank of Lieutenant on the destroyer USS Watts. After his service, he earned his JD in 1956 and worked in private practice for more than 20 years.

He gave back to his alma mater by serving as an adjunct professor at Illinois from 1972 to 1978, including work with another future federal judge, Prentice Marshall, to create the trial advocacy program. President Jimmy Carter appointed him as judge for the United States District Court for the Eastern District of Illinois in 1978, and soon after his confirmation the courts were rearranged so that he served the Central District of Illinois.

He would spend the next 44 years on the bench in some capacity, becoming Chief Judge of the Central District in 1984 and Senior Judge from October 1994 until January 2022. Additionally, Baker served a seven-year term on the United States Foreign Intelligence Surveillance Court from 1995 to 2005, having been appointed by Chief Justice William Rehnquist.

During his time as a judge, he earned a reputation as more than just a good colleague. In 1987, he ruled that Springfield’s commission government was in violation of the federal Voting Rights Act, which ended the mayor-and-four-commissioners governance of the city that had elected no Black individuals from 1911 to 1987. He also took prisoner rights cases much more seriously than was common for his time, going so far as visiting the Pontiac Correctional Facility to examine conditions first-hand. His belief in humanity of incarcerated individuals led to decisions that would become part of law review literature.

“He never lost sight of the fact that these people in the prison remained human,” said Pope, remembering Baker’s actions.

Hollywood even took notice of Baker’s decisions, as his role as judge in the lysine price-fixing conspiracy case against Archer Daniels Midland was later immortalized on the silver screen in 2009’s “The Informant!” Baker was played by Dick Smothers, one half of the famous Smothers Brothers comedy team, in the film.

However, for all hose individual accolades and career achievements, Baker is best remembered for his personality and gracious spirit.

In the News-Gazette’s memorial, U.S. District Court Judge Sue Myerscough described Baker as “one of the smartest people I ever met.”

A law clerk to Baker in the early 1980s, overlapping with Pope in his office, Myerscough also recalled Baker “treated everyone equally and he didn’t hesitate to call out an injustice when he saw one. He didn’t put up with fools lightly in his courtroom.”

Fellow Illini judges Arnold F. Blockman ’73, who served the Sixth Circuit of Illinois, and Colin Bruce ’89, who served on the Central District bench with Baker beginning in 2013, both hailed Baker for his collegiality.

“He was quite a character and a really great guy and a good friend,” said Blockman.

“Sometimes when a sentencing is wearing me down, it makes me remember Judge Baker’s smile and ‘onward and upward,’” said Bruce.

Everyone who came into Baker’s orbit will remember the man for a long time, such was the nature and strength of his personality. Pope, who had a life-long relationship with Baker extending far beyond his time as a clerk for the young judge, credits him with lessons that shaped a career.

“Harold showed me what the finest lawyer, judge, and human could be. He saw something in me that he liked and valued,” Pope said. “That confidence in me, from someone I admired, helped me gain and keep confidence in myself. I’m sure there are many others he mentored that feel the same way.”

Judge Harold Baker speaking before a Senate committee.

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Lawless speaks to Philadelphia Inquirer about bankruptcy protection and student loans

When student loan payments resumed in October, an op-ed in the Philadelphia Inquirer proposed a solution to help debtors: Restore bankruptcy rights to student loans. To make his case, the author of the piece spoke to bankruptcy expert Professor Robert Lawless about the history of bankruptcy protection for student loans. Lawless explained that although federal student loans are not currently permitted in bankruptcy filings, legislation that restores these rights would not contravene existing law.

“Any law passed by both houses of Congress and signed by the president can amend the Bankruptcy Code,” said Lawless.

Read the full article.

American Bankruptcy Institute publishes article from 3L Alec Klimowicz

Congratulations to 3L Alec Klimowicz, who recently published an article, “Creditor Matrices Are Trending Toward Immediate Concealment,” in the American Bankruptcy Institute Journal. The journal is ABI’s monthly professional magazine that is distributed to thousands of members. Klimowicz’s article explores the recent trend of judges being asked to conceal debtor information included in the creditor matrix in order to deter would-be scammers from accessing and using that sensitive information for malicious purposes.

Read Klimowicz’s full article here.

Daniel Campbell ’13 named to Crain’s 40 Under 40

“The best young partner I’ve ever worked with,” is how former McDermott Will & Emory Chair Jeff Stone describes Daniel Campbell ’13. It’s little wonder then that Crain’s Chicago Business chose the young lawyer as one of their “40 Under 40” for 2023. With an incredible work ethic and an impressive and growing list of arguments, this is just the latest recognition in a career that has already received numerous praise and will certainly earn more.

Read the full Crain’s write up here.

Finkin files amicus brief in tenure and academic freedom case at Massachusetts Supreme Court

Professor Matthew Finkin submitted an amicus brief to the Massachusetts Supreme Court in Wortis v. Trustees of Tufts College, a case that is expected to define the legal content of tenure and academic freedom in American higher education. Writing for amici, Finkin argues that their brief shows that “(1) Tufts’ tenure and academic freedom policies are contractually binding; (2) the economic security tenure guarantees precludes reductions in salary save for conditions not present here; and (3) the application of Tufts’ compensation plan to incumbent tenured professors breaches their contracts of tenure and compromises their academic freedom.” Amici urge the Court to rule in favor of the plaintiffs.

Read the full amicus brief.

Lawless quoted in Reuters series on lasting effects of slavery

In their series on how the effects of slavery remain with us today, Reuters spoke to Professor Robert Lawless about the history of bankruptcy. The series, titled “Slavery’s Descendants” examines how slavery, the Jim Crow era, and racial discrimination put two different families (one white, one black) on very different economic paths. For part four, “American Dreams,” Lawless provides his expertise to explain racial discrepancies in bankruptcy cases, which have tended to have worse outcomes for Black debtors than for white debtors.

Read the full article on Reuters’ website.

Jones speaks at conference on protecting children online

Professor Faye Jones was part of a select group of individuals asked to participate the in the NOVA Law International Conference on “Protecting children online: the role of data protection.” Held in late September at NOVA University Lisbon, the “Protecting children online” conference was organized by The Observatory of Personal Data Protection, whose institutional goal is updating and modernizing the rules for protection of personal data. Jones was part of a panel discussion titled “International and European perspectives: can data protection law protect children online?”