2015 Annual Survey: Bankruptcy Law

The Honorable Kevin R. Huennekens *

Nathan Kramer **

This survey of bankruptcy and insolvency case law is the third installment in this series, which was initiated in 2009[1] following Congress’s enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPCPA”) in 2005.[2] The previous version of this article was published in 2012,[3] not long after the Supreme Court’s 2011 ruling in Stern v. Marshall, which restricted the authority of bankruptcy courts to issue final judgments on issues arising under state law.[4] As was noted in the 2012 installment, “[t]he full impact of Stern both nationally and in the Fourth Circuit remains to be seen.”[5] There has been a significant amount of development concerning Stern claims both nationally and within the Fourth Circuit in the past three years.[6] It is fitting that this installment should come on the heels of the Supreme Court’s decision in Wellness International Network, Ltd. v. Sharif, which has resolved many of the issues posed by Stern, at least for the time being.[7] More generally, the Supreme Court has decided an abnormally large number of bankruptcy cases in the past few years.

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*    Judge, United States Bankruptcy Court, Eastern District of Virginia, Richmond, Virginia. J.D., 1978, Marshall-Wythe School of Law at the College of William & Mary; B.A., 1975, College of William & Mary.

**   Associate, Hunton & Williams LLP, Richmond, Virginia. J.D., 2014, University of Richmond School of Law; B.A., 2011, Marywood University. Former Law Clerk to the Honorable Kevin R. Huennekens, United States Bankruptcy Court, Eastern District of Virginia, Richmond, Virginia, 2014–15.

        [1].    Hon. Douglas O. Tice, Jr., Suzanne E. Wade & K. Elizabeth Sieg, Annual Survey of Virginia Law: Bankruptcy Law, 44 U. Rich. L. Rev. 201 (2009).

        [2].    Pub. L. No. 109-8, 119 Stat. 23 (2005) (codified as amended in scattered sections of 11 U.S.C.).

        [3].    Hon. Douglas O. Tice, Jr., K. Elizabeth Sieg & David W. Gaffey, Annual Survey of Virginia Law: Bankruptcy Law, 47 U. Rich. L. Rev. 51 (2012).

        [4].    131 S. Ct. 2594, 2620 (2011).

        [5].    Tice, Sieg & Gaffey, supra note 3, at 51.

        [6].    “‘Stern claims’ are those claims designated core claims by the Bankruptcy Statute, but prohibited from final resolution by bankruptcy courts as a constitutional matter by Stern.” Shaunna D. Jones & Paul V. Shalhoub, Supreme Court Provides Guidance to Bankruptcy Courts in Addressing “Stern Claims” and Holds That “Stern Claims” May Proceed as Non-Core Claims, Willkie Farr & Gallagher LLP 2 (June 18, 2014), http:// www.willkie.com/~/media/Files/Publications/2014/06/Supreme_Court_Provides_Guidance_ _to_Bankruptcy_Courts_in_Addressing_Stern_Claims.pdf.

        [7].    135 S. Ct. 1932 (2015).