Here’s a judicial estoppel hypothetical:

• debtor files Subchapter V bankruptcy and achieves a confirmed plan;
• in the bankruptcy debtor fails to disclose a pre-petition lawsuit claim;
• after plan confirmation, debtor files suit on the pre-petition lawsuit claim; and
• defendant seeks dismissal of the lawsuit, with prejudice, on grounds of judicial estoppel—i.e., for debtor/plaintiff’s failure to disclose the claim in bankruptcy.

Question: Who should be the ultimate beneficiary of a lawsuit claim that debtor fails to disclose:

近年来，预重整已成为上市公司进入司法重整前几乎不可或缺的前置环节，其源于本土需求、服务于纾困实践的兴起路径，彰显了市场对高效挽救机制的迫切期待。然而，在立法规则尚属空白、实践探索快速扩张的背景下，该制度正面临深刻的异化趋势：预重整作为解决重整效率瓶颈与确定性风险而诞生的“辅助工具”，当其价值被证明有效后，迅速从“可选项”变成“默认项”，几乎成为上市公司重整的必经之路，其功能从“预先协商桥梁”偏移为“实质工作前置”，进而引致临时管理人角色模糊、权责失衡、企业拯救成本攀升等一系列结构性困境。基于对这一市场趋势的密切关注与忧思，本文聚焦于制度逻辑的完整性、各方权责利的平衡性以及程序正义的可实现性，将依次追溯制度的生成逻辑，呈现规则图谱的留白现状，解剖功能偏移衍生的核心痛点，并最终尝试提出使预重整回归其商业谈判本质、约束于重整前协商程序的路径展望。笔者深信，唯有正视当前实践中的张力与悖论，方能推动这一重要企业风险纾困工具的行稳致远，真正实现其提升困境企业重生效率与公平的初心。

一、制度起源：中国本土语境下的生成逻辑与“生存突围”

A Petition for Writ of Certiorari has been granted by the U.S. Supreme Court in Keathley v. Buddy Ayers Construction, Inc., Case No. 25-6, on a ruling from the U.S. Fifth Circuit Court of Appeals.[Fn. 1]

The Question Presented in Kethley v. Buddy Ayers is this:

11 U.S.C. § 365(c)(2) says (emphasis added):

Here’s a question about the new Uniform Assignment for Benefit of Creditors Act (the “Uniform ABC Act”):

• Is a liquidation under the Uniform ABC Act a good thing or a bad thing for the debtor’s unsecured trade creditors?

The answer is easy: it’s a good thing.

28 U.S.C. § 157(b)(5) provides: “personal injury tort and wrongful death claims shall be tried in the district court in which the bankruptcy case is pending, or in the district court in the district in which the claim arose”

In other words, “personal injury tort” and “wrongful death” claims cannot be tried by a bankruptcy court.

The U.S. Supreme Court does not like the Bankruptcy Code. It never has. Two examples are:

Mass torts and resulting litigation are a reality of life in these United States.

But one of the truly shocking things about mass tort litigation, in recent times, is this:

• judicial delays override the wishes of mass tort victims for prompt payment of negotiated amounts.

A current example of such delays is the Boy Scouts confirmed bankruptcy plan.

Chronology

Here is a short Chronology of the Boy Scouts bankruptcy plan—and the lapse of more than three years since confirmation without a final resolution:

The Uniform Law Commission (“ULC”) is the same organization that brought us the Uniform Commercial Code, the Uniform Trust Code, and other “Uniform” state laws.

The ULC is now offering a Uniform Assignment for Benefit of Creditors Act (the “Uniform ABC Act”).

The new Uniform ABC Act codifies the common law of ABCs. Such common law has its foundation in the law of trusts: i.e., debtor is the trustor, assignee is the trustee, and debtor’s creditors are the beneficiaries.

When state legislatures consider a legislative bill, it’s important that they hear from stakeholders who would be affected by that bill.

Important ABC Stakeholders

When faced with a legislative bill on assignment for benefit of creditors (“ABC”), its important that legislatures hear from a variety of stakeholders, including this important group: