Justice Stephen G. Breyer is now retired from the U.S. Supreme Court, serving from August 3, 1994, to June 30, 2022.

One of his legacies—and an exceedingly important one—is this: he has worked, successfully, to erase “public rights” from the lexicon of controlling bankruptcy law.

What follows is a summary of how “public rights” came to be part of that lexicon, and how Justice Breyer works to get it erased.

“PUBLIC RIGHTS” BEGINNING—Northern Pipeline

The first week of July has brought with it a flurry of activity in the digital asset markets – but not the type of activity that investors in the space likely hoped for.

As a parent of three young children, Disney’s excellent new movie, Encanto, has been on heavy rotation in my household. It’s a story of an extended family whose members possess unique magical gifts. Through several humorous songs, the film reveals that the family has ostracized one member, Bruno, whose mystical visions of future calamities upset the rest of the family. Rather than confront the unpleasant aspects of the future, the family finds it easier to simply “not talk about” them, or Bruno.

In This Issue:

On July 5, 2022, Scandinavian airline SAS AB, along with several affiliates, filed a petition for relief under Chapter 11 of the Bankruptcy Code in the Bankruptcy Court for the Southern District of New York (Case No. 22-10925), reporting $10 to $50 billion in assets and $1 to $10 billion in liabilities.

The case before the U.S. Supreme Court is MOAC Mall Holdings LLC v. Transform Holdco LLC, Case No. 21-1270.

The bankruptcy question upon which the U.S. Supreme Court granted certiorari is this:

In this article, Jose Maurellet SC and Michael Lok consider a recent judgment by Aedit Abdullah J of the Singapore High Court exploring issues arising out of the Model Law, including how and when the presumptive COMI may be displaced and whether a publicly held real estate investment trust falls within the scope of COMI.

Companies work with experts to secure litigation favorable judgments only to face obstacles to enforcement. By learning how to “think like a bad debtor,” creditors can work with specialists to pursue multimillion judgments and uncollected awards.

Both the Johnson & Johnson and InfoWars bankruptcies are filed to address tort lawsuits.

Johnson & Johnson’s bankruptcy survives a motions to dismiss.[Fn. 1] InfoWars’ bankruptcy doesn’t.[Fn. 2]

What follows is an effort to compare and contrast the two cases, revealing why one survives and the other doesn’t.

The Businesses

–Johnson & Johnson

On June 30, 2022, Plano, Texas-based mortgage lender First Guaranty Mortgage Corp. (“FGMC”), filed a petition for relief under Chapter 11 of the Bankruptcy Code in the Bankruptcy Court for the District of Delaware (Case No. 22-10584). FGMC reports $500 million to $1 billion in both assets and liabilities.