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We're interviewing, uh, US bankruptcy Judge Eric L. Frank today on May 27th, 2025, uh, for the National Bankruptcy Archives Oral History Collection. My name is Bruce Grosgow, and I'm a law professor at Delaware Law School, Winer University. Our, our interview is being held in the special

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collections room in the library of Delaware Law School. Uh, and good morning, Judge Frank. Good morning, Bruce. Um, I'm very much looking forward to our conversation today. Me too. Uh, could you tell us, uh, when and where you were born? I was born in New York

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City in the Bronx in 1952 and where were you raised? Same place? What part of the Bronx? Kingsbridge Road area. It's sort of northwest near what is now Lehman College back then it was called Hunter College. Uh, what was it like growing up in the Bronx

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in those days? Well, I probably had a kind of cliched New York City urban baby boomer lifestyle in the late 1950s and 1960s. Lots of time. To spend with my friends out on the street. Playing stickball, punch ball, touch football. Watching out for the cars, uh,

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but applying myself in school at the same time. Um, and, and what did your parents do? My family is working class, my Before I was born, this family folklore as my father worked in the Brooklyn Navy Yard after World War II. Um, he later worked for

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the Department of Motor Vehicles for a while and then he worked as a transporter of cars for, I guess, new or used car dealers. I'm not sure, and he was on the road a fair amount. My mother was a bookkeeper and office worker for much of

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the time. She was home for some of it, but a lot of the time she was working and the neighborhood was, um, similar people, working class neighborhood. Yes, it was, it was a ethnic mixture. There was Jewish people, Italians and Irish all mixed together and did

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they have brothers and sisters. I have 3 brothers. I'm the 3rd in line. Um, two older brothers and and a younger brother, it's a big range, top to bottom 17 years. Uh, how old were you when your, when your younger brother was I was 8. So

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when I grew up, I was the baby of the family, but then I became an older brother. He usurped your position. That's right. And where did you go to high school? I went to the Bronx High School of Science, um, and, and, uh, uh, what kind

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of a school was that at the time? That was, uh, I don't know what the term they use for it, but it Philadelphia would be kind of a mag magnet school they would call it here, but you had to take an exam to get in and

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so it was a selective school. It was like what, like central or girls high that would be a, a good analogy and I was at, I was walking distance from the school, um, but I remember there were. Students who would travel well over an hour come

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from Queens to come up to the northwest part of the Bronx to go to Bronx Science. Why did you, uh, decide to go there? That's what you did if you could get in, you tried to get in. Your parents urged you as well yeah I mean

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it it was unspoken and fairly typical on a lot of families that in in my area that uh your job as a kid was to have some fun but to work very hard at school. And try to get into schools like the Bronx um high school

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size um was it was what kind of neighborhood was the school if you remember? Well, it was in a cluster of schools. The school right next door to it was Heitt Clinton High School, and, um, it was almost contiguous to Lehman College, so it was a

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whole row of, of schools up in the Northwest Bronx, and you, um, you could walk there from home. Yes, it was about a 15-20 minute walk back in the days before REI gave you very good quality warm clothing. I remember freezing in the winter. No global

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warming yet. Was it all boys or was it coed already? Coed and that was actually one of the reasons I wanted to go there because Dewood Clinton is all boys. That would have been other school I would have gone to if I hadn't gotten into science

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and, and you mentioned that um. Students from all over the New York public school system tried to get in there. So was it a different, uh, kind of mix of people when you got there? or was it pretty similar to what you've been brought up in

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the neighborhood you've been brought up? Pretty similar overall, I say. And what else do you remember about it? It was rigorous. We took a lot of science courses, more than, than, uh, required by the, the. The Regents, the general, uh, state, statewide requirements, and there were

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a lot of very smart kids there, you know, uh, science is proud of all the Nobel Prize winners that it's produced. I'm not one of them by far, but, but you did other things and interestingly, uh, Bruce Fox, who we'll talk about later, bankruptcy judge, he

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also grew up in the Bronx. He also went to Bronx Science. He was a couple of years ahead of me. I didn't know him then. Uh it is, it is a small world. Did you think you wanted to be um a lawyer when you were in

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high school? I think I did, um, by then I, I'd had a couple of years where I'd had this fabulous history teacher named Mr. Harrison. I had him in junior high school and then by chance he managed to transfer to Bronx Science, which, um, I think

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was not an easy thing for a teacher to get to and I, I was able to have him again. As a as a senior there and he made me love the subject and that kind of pulled me away from from the sciences um so where did

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you go to college I went to Harper College, which was the undergraduate school of what was then called State University of New York at Binghamton, SUNY Binghamton. Uh, they, the school has since rebranded itself now calls itself Binghamton University which. People of my generation aren't happy

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about that, but we all know about that from a lot of schools around here rebranding themselves. I've heard, I've heard that's a great school and know other people that have gone there. Why did you choose to go to, uh, to Harper being? Pretty simple. Best school

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I could get into that I could afford. Well there you go. I, I can remember now the state the tuition. Each semester when I went there was $400 different, different, um, yeah, what was your college experience like there? Well, I was in college from 1969 to

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1973, so those are four years that were. We're still in the, the midst of the stereotypical sixties culture or subculture, lots of rock music concerts expanding the boundaries of your mind, and this is all against the, the backdrop of the Vietnam War, the draft and the

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student protests against the war. So within that turbulent mix of, of, of, of a time. Um I was in college. I had lots of fun. I continued to apply myself to academics. Um, I majored in history, but took a lot of courses that just interested me,

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particularly in the, the philosophy department. Uh, but I also remember having lots of fun and it was a great combination. Uh, I remember being. Consciously aware of the time that this would, I would look back on this, that this would probably be a time I would

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never be able to have again where You could just do what you wanted to do each day, study what was interesting, have lots of free time to play sports or, or, uh, hang out with your friends, no real responsibilities. Um, I loved my time in college.

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Were you right in thinking that it was maybe the peak of your life? No, I don't know if it was the peak of my life, but it was, it was one of the peaks of my life. There you go. Um, uh, did you meet your wife

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in Binghaton? No, I met her later in law school and what was it like being away from the city? Binghamton's a, you know, much smaller, mostly college town. Yes, and the, and the university campus, which was actually outside of Binghamton in a town called Vestal, uh,

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was, uh, you know, self, uh, contained place. I liked it. I, I always thought there was plenty of things to do, you know, a fair number of students from the city. Felt bored there but I didn't. They, they brought in. A lot of culture if you

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wanted to go see music or or theater, um. I I, I just thought there was plenty to do. It was a, it was a robust college town kind of atmosphere on the campus. I mean, and, and after a year or two, most, most of the students,

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myself included, we moved off campus, so we got to pretend we were adults. So what made you decide to study law? Well, You know, I was an upwardly mobile working class Jewish kid, and the obvious paths for For me were to be a doctor or a

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lawyer and since I passed up on science and and I remember thinking in college one of the other things I remember thinking in college was how by focusing on the social sciences and not the sciences I didn't have to get up for 8 o'clock labs and

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I really knew I didn't have to work quite as hard to to achieve so having moved away from science law was kind of uh an obvious choice. I, I took a course at. In Binghamton in the political science department it's called Constitutional law. Um, I didn't

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realize it at the time, but the professor whose name was Nathan Hackman, he taught it like a law school class. Our textbook was a constitutional law book, um, and as assignments we had to analyze the cases and write mock briefs. And I just had a knack

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for it. I mean, right away it was, it just came very easily to me. And you know, as, as I, I would tell I would tell this to. Students that I would interview for internships when once I was a judge and they would ask me for

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advice. I, I always told them that you tend to gravitate and like the things you're good at. And I realized I was good at that. Um I Loved being in college so I had considered trying to figure out a way to stay in that atmosphere, you

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know, maybe, uh, becoming an academic, but I never found a a mentor or or a sub subject within history that that I could really focus on. So once I took that constitutional law class, that was a clincher I knew that law school was where I was

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headed. And so you went straight from Binghamton or from Harper, it was called at the time to, uh, uh, University of Pennsylvania Law School in 1973. Uh, why did you choose Penn? It was the best law school I got into, you know, there was a running

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joke in my class at Penn Law. That everyone who went to Penn was there because they didn't get into Harvard. And I think it was mostly true. Was that the, uh, do you remember was that Yale and Harvard were the, the, the two hardest to get

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into at that time? Yes, on the East Coast, I mean, I guess a few people thought about, you know, Stanford or or Bolt, but, um, did you, um, did you, you said you met your wife in law school. Did you meet her right away or through?

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No, we didn't sort of connect until 3rd year. So what was your experience like during law school at least prior to when you met your wife? Yeah, I, I was in the minority, I think, in my class, and I mostly liked it, um, it was. It

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was a grind, no question about it, but I found it intellectually challenging. I felt the professors and the coursework were teaching me a methodology of thinking and. That it was improving my reasoning ability, my intellect, um, so I, I embraced it, um, a lot of people

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complained about it. I, I did not. I made the law review on grades after the first year. That's how they were mostly doing it back then by the skin of my teeth, by the way, I think I had the lowest grade that that made it. Um,

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but the law school experience I thought contributed to, uh, my skill set. I think it, it, it taught me additional ways to, to think and write rigorously, um. You know, between La review editing. Drafting a potential law review comment which wasn't published um and my course

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work in the 2nd year I don't think I ever worked harder that year it was, it wore me, wore me out. I was, I was very tired after 2nd year, so by 3rd year I wanted to do something different. Um, I knew I didn't want to

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continue, um, Up the ladder on the lower view to become one of the big managing senior editors, um, and I also by that point knew I didn't want to continue on. At Penn, it was a kind of traditional curriculum, uh, if you were headed towards, uh,

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business law and, uh, large corporate firms. I decided I didn't want to do that, so my 3rd year, I mostly, as much as I could, I took a lot of clinical courses, which is where I met my wife. Uh, there you go. Um, well, before we

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get to her, which I'm glad we finally are about to, um, so we were, um, most of the Penn graduates at that time eyeing the Philadelphia firms, or were they looking to New York or other cities or both? The, the nice thing about Penn was that

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it was a national law school and people were going all over, in fact. Um I, I viewed my law school experience as sort of a continuation of my liberal arts experience. I wanted to learn as much about the world as I can and, and even though.

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In my heart politically, I knew I didn't didn't think I was gonna go the corporate route. In my 2nd year, I interviewed with for the big firms, um. In New York and Philadelphia and on a flyer I interviewed with a Los Angeles firm. They made me

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an offer and I decided to take it because why I've never been to California, so I spent my second summer in LA with the the name of the firm. Was called Miqueta Finning and Finch. The finch in the firm was Robert Finch, who was a former

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Secretary of Health Education and Welfare, um, and so I was out in California for the 2nd year, and it was, it was a nice experience. I realized I didn't particularly like Los Angeles and I wasn't gonna go back, but, um. It, uh, the experience just opened

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up a world to me just to at least see something that I hadn't seen before. And, and I expect to see people in practice rather than just teaching. Yes, you know, the there was one funny thing that I did that year. I was given the assignment

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of trying to track down. An expert on some case I, I don't remember the content of it and I'm making calls and by accident I called the expert who was had been retained by the other side in the case and they were furious with me and

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I, I remember going to the other side and I remember going to the to the partner involved and I was shaking. I thought, what have I done? But he was fine, but he said it wasn't your fault and who cares what they think. Don't worry about

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it. It's a good story, um, so, uh. After that or partway through that experience in the summer, um, you started taking more clinical courses in your third year. What kind of clinical courses did you take? Well, I took a course called Trial of an Issue of

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Fact. It's not exactly a clinical course. It was more of a simulated course with among other, it was taught by a number of people practitioners, and one of them was David Rudowsky, who's a well known, um, civil rights lawyer in in Philadelphia. Um Um, and, and

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I remember one interesting thing that happened during that course, we were doing one of these mock hearings and I was playing the witness in that hearing. And the lawyer asked a really good question that threw me a little bit. I looked at my, my student lawyer.

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And um I guess I guess Rudovsky was doing the examination um and he saw that and he said don't look at your lawyer and I realized it just made me realize how sharp a trial lawyer has to be about seeing everything in the courtroom. um, so

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that was one course. The other course I took was called Community law and litigation. I think I got like half the credits for that because it was a big time commitment. And what they did is they placed us at community legal services and I spent time

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working as a a student under obviously uh lawyer supervision at the North Philadelphia office in Philadelphia Broad in Erie a building called the Bewery Building where the working conditions were about the same as their the indigent clients that they were representing. I, I, I, I remember.

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One day I was there and we were working in the, it was, it used to be a bank and we were back in the vault area. It had to be 50 to 45 degrees back there and they were expecting us to work. It was just it

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was just terrible, you know, it made me made me think twice about whether I wanted to do legal services work, but you know, we're handling real cases and it was, it was a nice experience. It was a fairly new, um, organization at the time, wasn't it?

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It was just a few years old. Well, this would have been 1976. It was about 10 years old at that point, um, and they were still, did they give you pencils and pads or did you have to bring your own? I think they gave us the

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pen, but that's about it. Um, so, um, you, you met your wife at that course and take, did you meet her, um. No, I did one, I did, I I'm glad you asked that. There was a third clinical course I did called the Indigent Prisoner litigation

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Program where under the supervision. Of our professor was Ralph Spritzer, a former. Either assistant or and and acting acting solicitor general, um, we were handling um. Civil rights cases for uh prisoners who were in Graterford Prison and uh my wife Billy Schnall and I were paired

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up and we were representing uh. Uh, a fellow in a civil rights suit. He had been arrested and he asserted that he had been beaten. And we worked the case up all the way up to trial although the trial was scheduled in the fall and we

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were graduating so we didn't get to do the trial, but we did depositions we had a pretrial conference with the federal judge which at that point was Chief Judge Alfred Luongo, um. And it was that also was an interesting experience. We walked into his chambers. The,

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the lawyer on the other side was at that point he was a city solicitor. His name was Stephen Saltz. He's now the eponymous, is that the right word, of the, of a major law firm, Saltz Monggaluzzi and something else in Philadelphia. Well, Stephen Saltz died a

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long time ago. So anyway, Saltz is the assistant city solicitor. He comes in. And Judge Luongo says, hi Steve, and he looks at us two mongrels like on this. Oh, in fairness, uh Luongo was OK on the case. Yeah, um, did you take a bankruptcy course

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at, uh, Penn in law school? I started to, um, I, I enrolled in the course of my 2nd year and I did go to class for the 1st 2 weeks during the ad drop period and I read, I was reading the materials and I actually thought

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it was interesting but. The course was taught by the professor I had for contracts the previous year, and he's a very nice man and he had long stay at Penn. I won't mention his name, but he was a terrible teacher and by then consistent with my

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liberal arts philosophy about what courses I was gonna take in law school. I mostly picked my courses by the reputation of the teacher there just as a lot of people do in undergraduate school, um, so I said I cannot tolerate another semester with him, so I

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dropped the course. It was still the act, wasn't it? Um, 700s, yes, it was still was there any talk of the code or was it still just something that might happen, not the first two weeks that I was there, and you say you, you met your

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wife at the, uh, uh, what was the indigent rights indigent prisoner litigation program and, and, uh, did you start, uh, dating right away, or did it take some time? Took a little bit of time and it blossomed pretty quickly. When when were you married? We didn't

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get married till this is, we're talking from 1976, we didn't get married till 1985 because after law school, we were at a long distance relationship for a while because she took a job. In legal services in Western Massachusetts. It's a long distance, um, so, uh, eventually

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you did get married and, and you had kids. Yes, we have 2 kids, 2 daughters. My older daughter Rachel is a, uh, gastroenterologist at Cooper, and my younger daughter Deborah is a producer of children's animation. She her her big. Um, Big item on her resume is

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that for a while she was a producer for the television show Arthur, which is a, a very well known PBS show which was on for a lot of years. She was on it in the last few years of the show. So that's great. No lawyers though

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nobody followed my, my younger daughter would be a great lawyer, but instead she decided to go into show business. So some, some lawyers would say they're more similar than than than perhaps you and I would, um. So, uh, when you graduated from Penn, uh, what was

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your first legal job after that? My first legal job was a clerkship. I clerked for Justice Samuel Roberts of the Pennsylvania Supreme Court. Um, that's a great clerkship, by the way. I'm sure you were pleased. Where, why did you choose a state court over a federal

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court clerkship? Yeah, I applied for both, um, and The dean of the law school was Louis Pollock, of course, later became a, a federal district court judge. um, he urged me to take the state court. Post, um, he thought it was important. He thought that, that,

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uh. Justice Roberts would be excellent judge to clerk for and you know, without putting it in those words, it kind of implied to me that clerking for Roberts on the on the Pennsylvania Supreme Court would be almost the state court equivalent of clerking for Justice Brennan

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on the US Supreme Court given the sort of the state of each court at the time. Where did, uh, where did the judge sit? Where were his chambers? His chambers were in Erie, Pennsylvania, so they still do it this way. The, the way the Pennsylvania Supreme

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Court works is they would sit. In Pittsburgh, Harrisburg, and Philadelphia, several, I think Philadelphia twice a year, Harrisburg, maybe twice in each place, I don't know how many times in each place, but there were two court trips that year to Philadelphia and I made sure I

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went on both of them. I was a little bit of a fish out of water in Erie. Yeah, Erie Erie was an industrial town then, yeah, yeah, and it's right on the lake, right on the lake, and you know, they caught the mistake on the lake,

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but I, I think that's a little unfair. Uh, the other thing that stands out to me is how much snow there was that that winter. It's in that buffalo, uh, it, it gets, it gets the lake effect snow. They're hun they're over 100 inches of snow.

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Well, I hope you didn't have to shovel all of it. What sort of work did you do for Justice Roberts? What you might expect, I, I was one of 4 law clerks, um. Justice Roberts had that year and uh my colleagues were all very smart, excellent

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law clerks. We all got along. I loved working with them. Um, you know, under the Justice Roberts' supervision, we would typically give him a draft of, of his opinions. And that year there were a fair number of of defenses. Um, it was, it was a heady

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experience. I, I remember being aware that I was going from You know, law school, somewhat towards the bottom of the totem pole of the profession and Being connected to a height of the profession right away, um, and. I, I'm just amazed by that, um, in my

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first month on the job, one of the cases that that came down was an appeal where the issue was whether the recall provisions of the Philadelphia Home Rule charter were unconstitutional. Um, under the Pennsylvania under the Pennsylvania Constitution, uh, this was in response to a, a

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recall effort against Mayor Frank Rizzo. And, and I think the vote was 4 to 3 or 5 to 2. The Pennsylvania Supreme Court held that it was in fact unconstitutional and um I and my other clerks, we, it was all hands on deck because we were

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not given a lot of time, but we put together a. A lengthy dissent that for Justice Roberts who who who took the position it was that it was constitutional, which is, you know, pretty heady stuff for 224 year old kid right out of law school I'd

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say, um, was he, was your judge, Judge Roberts, um. Accessible in the sense that you were able to learn a lot from what he said is in addition to just watching how he worked. Yes, he, he, um, he spent a fair amount of time. In chambers

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with us, um, and go over the opinions with us and, and do some editing and you you learn from watching yeah um so when you, uh, that was a one year clerkship, one year clerkship and then where did you go? What was your next job? I

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applied for a number of jobs, um. And eventually I was hired by Community Legal Services in Philadelphia and are they still still at Broader? Well, Broader is only one of the neighborhood offices. uh, CLS had offices in North Philadelphia, in South Philadelphia in. Kensington, which was

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called Law Center Northeast, and it had a center city office. It also had an office at the time in the Gerard area, um. And I was hired in, in January of 1978 and I started in the West Philadelphia office. Uh, and, and, uh, what. It again,

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it was a fairly new organization, but it was pretty well established by then, about a decade or so old. Um, what was the purpose of CLS? CLS, um. At the time was receiving. Most of its funding was coming from the federal government, the Legal Services Corporation,

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and it's. Mission is to provide free legal assistance to low income residents of Philadelphia at the time, CLS provided representation in, I'd say 4 areas public benefits people who are having issues with their eligibility for public assistance, Medicaid, medical assistance, uh, SSI. Employment law, including unemployment

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compensation. Housing issues, both landlord tenant and home ownership because Something that was somewhat new to me, unlike New York City, where everybody I knew was renting apartments, of home there is a lot of homeownership in Philadelphia even among low income people. Um, and finally some family

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law issues, so you dealt with not just um landlord tenant issues but also foreclosure issues. Well, we had a separate landlord tenant unit which I did not work in, so I mostly dealt with foreclosure issues because I was, I mostly did what we call consumer housing

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work. I see, so it's all civil work, not criminal work, no criminal work at all. The public defender does criminal work and why did you apply for a job there? I self-consciously made uh a political choice to work in legal services, you know, I, I thought

00:30:19.000 - 00:30:39.359

of myself as. One of a number of uh Penn law and other good law school graduates with, uh, a particular set of skills. And you know, rather than put those skills to use for the benefit of the upper quintile, I wanted to assist those who lack

00:30:39.359 - 00:30:59.310

the same resources. I, I wanted to make the world a better place. The pay was a little less. Pay was a lot less, um, now, you know, it's funny enough years have passed that the numbers are tenfold different, but I think back then. Law school graduates

00:30:59.310 - 00:31:19.569

in first year, you know, those who were out a year in firms in Philadelphia were probably making about $40,000 a year. My first salary at CLS. And I got bumped because I had a year of clerkship was $16,000 a year. Could, could you pay the bills?

00:31:19.729 - 00:31:33.199

Yeah, it was enough to live on, um. And what was your position there? Um, you, you mentioned a little bit about the kind of work you did, where we, where did you stand in terms of the organizational structure? Well, I was a staff attorney initially after

00:31:33.199 - 00:31:54.819

some years I became a supervising attorney, um. The other main activity within CLS that that I had was. After a couple of years that once I was there, the attorneys formed a union. And I was in the union and at some point later during my stay,

00:31:55.189 - 00:32:10.349

I served as president of the union and I was on a couple of the negotiating committees for two of the union contracts. How'd that go? That was fascinating. I learned a lot about negotiation by sitting on the committee and the first time I was on the

00:32:10.349 - 00:32:29.829

committee. The more experienced lawyers took the lead and uh. I just sat back and watched. It was, it was really good. The second time I was in the lead at that at that point, um. It and it was interesting to see the dynamics about how. Uh,

00:32:30.180 - 00:32:52.380

polarizing these negotiations are because, uh, you know, it's a rough analogy. It's almost like having a, um, a prenup that, that, um, has been in a uh spouses go through, um, because you're gonna be together after, but you're negotiating at arm's length as adversaries, and these

00:32:52.380 - 00:33:09.459

are the people we work with every day and it got a little hot at times, um. But I don't think, uh, I mean we eventually we reached agreements and I don't think anybody, uh, bore any grudges from the negotiations. They were they were always political tensions

00:33:10.569 - 00:33:28.469

in any bureaucracy. I mean CLS at the time I started there. Reached its peak in the number of lawyers. At its peak, it had over 90 lawyers and probably 30 or 40 paralegals and a obviously a host of support staff. It's a big organization. It was

00:33:28.469 - 00:33:49.209

really big. It has shrunk dramatically since then, but um. As a truck because the funding is less or for other reasons partly the funding and partly for political reasons CLS split itself in half and and one part remained as CLS and did not take any federal

00:33:49.209 - 00:34:06.540

funding because of restrictions on the kinds of cases they could handle and this split into a second organization called Philadelphia Legal Assistance which does take the federal funding and does other work, um. So they're two smaller entities now. So, so, um, who did you work for

00:34:06.540 - 00:34:28.270

when you started working at CLS in the West Philadelphia office? After within a couple of months, my, my first real supervisor was uh David Scholl in the West Philadelphia office, um, doing consumer housing work. David was uh. A workhorse, let's put it this way, that way,

00:34:28.399 - 00:34:43.889

um. He, I never saw anybody work as hard as David Schul back then. I, I, I'll tell one David Schul story. Um, I came to work one day. I used to come to work early. Uh, I get there like 7:30. He was always there before me

00:34:44.209 - 00:35:01.909

anyway, but. I got there one day and I had a, had a key. I got, got in, I smelled a little smoke and I'm walking around and there's no lights or anything. Um, there had been some kind of a fire and um. The electricity had been

00:35:01.909 - 00:35:21.080

shut off. And I go up to the 2nd floor where our, my office was and David's office was, and I go and I see David's in his office. And he handwrote everything and he's huddled over his desk. With a miner's lamp on his head and he's

00:35:21.080 - 00:35:38.040

reading and and writing in the midst of of the smoke is just unreal. Did you go home? I think we weren't able to work in the office office that day. So anyway, David was my first supervisor, but after about a year I transferred to the Kensington

00:35:38.040 - 00:35:58.739

office, the Law Center Northeast, and there my first supervisor was Henry Summer, and after a while just for. Uh mix things up a little bit. Um, I shifted to Bruce Fox as my supervisor. So, so David Scholl, who had a very, um, strong reputation as an

00:35:58.739 - 00:36:11.050

advocate in those days. I recall, especially on consumer law matters, um, he eventually became a bankruptcy judge in Philadelphia in the Eastern District. Yes, he did. I mean, his claim to fame was, he must have been very young at the time because it was probably in

00:36:11.050 - 00:36:26.479

1976. He was probably 25 years old or so. He argued a case in the US Supreme Court on, uh, I think the constitutionality of confessions of judgment. I think it was a, I don't know if it was, I don't think it was the Snyd A case,

00:36:26.520 - 00:36:42.629

but I think it was a Pennsylvania companion case to that Overmyer is that it could be I don't recall the name call them cognova clauses as well, yeah, and he was only 25 when he I think he must have only been about 25, um. Yes, he

00:36:42.629 - 00:36:56.949

became, excuse me, he became a judge, and Henry Summer is the Henry Summer who's now co-editor of the Collier Treatise. Yes, he is, uh, quite a group there, and Bruce Fox also became a bankruptcy judge in the Eastern District of Pennsylvania in Philadelphia. Yes, Bruce Fox

00:36:56.949 - 00:37:17.350

also became a judge. Saint was appointed the same time as, as David, uh, in 1986, and, and I know in at least one speech I gave in public. Um, in mentioning my supervisors, I analogized it to being, uh, lucky enough to being called up to the

00:37:17.350 - 00:37:34.149

big leagues in baseball and being on the same team as Ty Cobb, Babe Ruth, and Lou Gehrig in, in terms of the impact each of these lawyers had in consumer bankruptcy law. They're giants, all of them and what was it like practicing there in general in

00:37:34.149 - 00:37:54.800

addition to the fact that you worked with such excellent supervisors. was challenging, demanding, um, but very rewarding. We had to litigate on a shoestring. I mean, CLS did not have a lot of money for, for litigation, and we had very heavy case loads, you know, a

00:37:54.800 - 00:38:10.070

lot of our time had to be spent deciding which cases to accept because we did intake. One of the things I did was intake. I have to spend. Two of my days or so a month where I would see the people just coming in to be

00:38:10.070 - 00:38:22.620

interviewed about their problem and then you know, not all of them more consumer housing problems so I had to be aware of some of the other issues and shunt them over to the right people at CLS or just give them. Legal advice. Uh, the days on

00:38:22.620 - 00:38:38.879

intake were probably the most demanding because, uh, it's like being in the emergency room and dealing with one emergency after another. Um, but And in addition to that I had a heavy docket of my own cases that I was handling, uh, but I was working with

00:38:39.100 - 00:38:59.840

brilliant people um who were really committed to the work. These people became my friends as well as my, my colleagues, um, in addition to the three supervisors that I've mentioned, I worked with, uh. People locally would know Irv Appelberg, David Searls, Erwin Traus, Alan White, all

00:38:59.840 - 00:39:18.020

of whom have had great legal careers. Um My work was, as I said a few moments ago, was in the consumer housing unit and we did some consumer protection work. I actually, a little bit lessened over time, but while we were focusing on it, I actually

00:39:18.020 - 00:39:36.459

handled. A federal odometer case and. Because the lawyer on the other side was a trial lawyer and thought he could, could, uh, keep it on his most comfortable turf, he demanded a jury trial which was allowed, so I did a jury trial with Bruce Fox as

00:39:36.459 - 00:39:59.260

my second chair before Judge Fulham, who also had great reputation in, in our district, brilliant man, hard on lawyers, and my recollection of the jury trial was that Judge Fulham spent. I don't know, 80% of the trials sitting on the bench like this. Because I was

00:39:59.260 - 00:40:18.030

pretty inexperienced. I mean, I, I, I, I did OK, but I wasn't that comfortable at that point. The other lawyer was. A mile wide and an inch deep, you know, uh, sort of the bad cliche about litigators, um, and, and, uh, Fulham did not have a

00:40:18.030 - 00:40:37.100

lot of patience yet after the The trial ended and. Everybody agreed we could have a split jury, uh, a nonunanimous decision, and it turns out we won because of that. Um, then he brought us into chambers and he was sweet as pie with both of us,

00:40:37.179 - 00:40:53.459

congratulating us. What a nice job. It was so strange. Is, is that the same Judge Fuleman who handled the, uh, Penn Central bankruptcy? Yes, yeah, yes, uh, he was one of the. Brightest judges I've appeared before, he did have quite a reputation, um, so what most,

00:40:53.550 - 00:41:10.090

well, before we leave it, because I mean a little bit actually it was a digression. What, what, um. I was saying is that we did some consumer work but mostly we did protection of houses and that involved a lot of mortgage foreclosure defense where we worked

00:41:10.090 - 00:41:31.750

on on uh creating uh creating but using. Defenses that people were not using much back in those days. And, and over time we began using the bankruptcy code more after '79, after uh 78, yeah, so I do want to go back for a minute. What is

00:41:31.750 - 00:41:49.120

a federal odometer case before we move on to something? Well, there's a statute that that that says that if you tamper with an odometer, there's a private right of action um with um. For I think both actual damages and statutory damages and attorney's fees, I see,

00:41:49.159 - 00:42:05.459

and this was a question of somebody buying a used car and the and the odometer had presumably been tampered roll back. Well, congratulations on on winning a jury one, my one jury trial. You don't see many. I realized that was probably not, not, uh, set out

00:42:05.459 - 00:42:25.139

to, to be a real litigator, jury trial litigator. Well, you won. How did you get involved in bankruptcy law? Well, I started in '78 at CLS and uh the Bankruptcy Act was still in effect and in fact, I think my first court appearance, semi- court appearance

00:42:25.719 - 00:42:40.850

on my own as a, as a real lawyer. I've been to court once or twice with as a student, but um. But as a lawyer I think the first time I went to court was on my own was covering a meeting of creditors for one of

00:42:40.850 - 00:43:01.149

David Scholl's cases which uh meant that it was uh before the bankruptcy judge because the bankruptcy judge presided over the meeting of creditors under the act. Um Now the main thing that happened is that after the code was passed but before it was it reached its

00:43:01.149 - 00:43:20.310

effective date, Henry Summer published an article in a periodical which I don't believe exists anymore called Clearing House Review which was was geared for the legal services lawyers all throughout the country about developments in the various areas of poverty law. This article was really a watershed

00:43:20.540 - 00:43:39.669

in consumer bankruptcy law history. In it, Henry described. How many of these new provisions of the law, the code compared to the act could now be used to benefit low income consumers and consumer debtors generally. Uh, so over the next few years I'm working in the

00:43:39.669 - 00:43:58.590

same office as Henry and Bruce Fox and Irwin Strauss and later David Searls, um, other attorneys and other, uh, other CLS neighborhood offices, and we have all these ideas that we are pulling from the article and new ideas that we're coming up with. It was, it

00:43:58.590 - 00:44:14.929

was kind of like a legal laboratory of, of trying to expand consumer rights under the under the bankruptcy code, um. Could you talk about some of the some of the specific, um, kinds of tools or or or changes that were beneficial to your practice at the

00:44:14.929 - 00:44:33.729

time? Well, one was of course the the um Increasing exemptions, uh, Pennsylvania has very. Very small exemptions which meant uh it would be very difficult to file a bankruptcy for someone under the act, particularly if they had a house with any kind of equity in it,

00:44:34.149 - 00:44:56.270

um, federal exemptions was was a big game changer. Lien avoidance was a was a game changer. Um, what kind of lien avoidance are you talking about? Well, you can avoid judicial liens if they impair your exemption and um. Big benefit for for consumers um. The uh

00:44:58.209 - 00:45:19.830

Increased ease and utility of. Chapter 13 to uh cure mortgage foreclosure defaults. I mean this was, this was dramatic change in, in, in the world it gave us so many tools to help people save their homes and this was pre-nobleman when the Supreme Court. Put something

00:45:19.830 - 00:45:39.439

of an end to restructuring mortgages in 13, wasn't it? Well, well, there's, we're talking about two different things. Uh, nobleman is really about second mortgages and stripping, stripping down that's the other big change, the fact that you could strip down a lien under Section 506 to

00:45:39.439 - 00:45:57.879

the value of the collateral. Now I, uh, you brought up nobleman, nobleman, uh, is a case about, uh, a limitation on that for home mortgages, um, but. Even under nobleman, if the 2nd mortgage is entirely underwater, you can still can strip them based on the case

00:45:57.879 - 00:46:13.830

law in in most of the circuits, including the Third Circuit, um, but The big change also for the first mortgages, just that you might call it run of the mill mortgage default that you could now uh structure a payment plan over time back then, you know,

00:46:14.139 - 00:46:32.689

the interesting thing about the housing industry. Back then, one of the tools that we tried to use Um, for housing, if, if it was, for example, an FHA mortgage or a VA mortgage is that those mortgages did come with some strings attached based on We call

00:46:32.689 - 00:46:51.780

them regulations, but the VA and and FHA had handbooks about how mortgagees should service their mortgage, and the text and the lip service was that they had some duty. Excuse me. To service the mortgage, to try to work with borrowers in default to try to allow

00:46:51.780 - 00:47:11.000

them to cure the default. And we would. Um, bring We, we have the administrative proceedings to try to compel them to do that or we raised that as a that was an example of a defense we would raise in state court that they hadn't serviced the

00:47:11.000 - 00:47:32.510

mortgage according to their obligations, um. I forgot where I was headed now about the advantages of the code over the act, and I, I think most of what you've been talking about that in the housing area regarding owned homes that are arrearages, um, could be, um,

00:47:33.070 - 00:47:47.899

addressed under a Chapter 13 plan and a way to keep their homes. Thank you, my pleasure. What I was gonna say is that. Back then and I this continued in my experience the whole time I was in practice and only changed later. I'll get to that

00:47:47.899 - 00:48:02.939

in a moment. You would approach the lender or Or the attorney involved whoever you were gonna do it and you'd say, all right, you're supposed to work with us. What kind of a payment plan can you give us? And it was always the same thing. It

00:48:02.939 - 00:48:22.590

was always double payments and cure this in 6 months and you know these are people struggling to make the regular payment, um. To me it was a joke. Now I will say that I think To some degree, the culture changed after 2008, at least my, from

00:48:22.590 - 00:48:39.169

my observation on the bench as I, as I would see what was going on in mortgage foreclosure cases and. Some true servicing did start to occur after the mortgage industry was shown to be an emperor with no clothes after the recession in 2008, but during the

00:48:39.169 - 00:48:54.629

whole time I was practicing it was useless, so you had to find other tools, um, and bankruptcy became one of the big tools to say, all right. And one of the things I, I really liked about being a bankruptcy lawyer, which was especially under Chapter 13

00:48:54.629 - 00:49:08.860

where you don't need consent because if I could figure out a plan that I thought was confirmable I could just say this is what we're doing. I don't care if you don't like it and we don't have to cure in 6 months we're gonna take 3

00:49:08.860 - 00:49:23.889

years we're gonna take 5 years, although initially when. In the early years of Chapter 13, it wasn't totally clear you could get 5 years, but over time the court seemed to accept that that was a reasonable period of time to cure a default. So, so even

00:49:23.889 - 00:49:41.590

though um. The code does not permit a cram down to the value of the collateral of a residential home mortgage. The simple fact that you were able to, um, confirm plans that provided for payment over time of the pre-bankruptcy defaults was a huge improvement. Now the,

00:49:41.620 - 00:50:04.260

the other thing that we would do for the second mortgages which um. Because of section 1322B could not necessarily strip strip down to a lower number. That's where we would use um. Litigation tools, uh. We had all developed an expertise in truth and lending and um

00:50:04.550 - 00:50:23.550

under in truth and lending cases if you could find an appropriate violation you were allowed to um rescind the mortgage and We would do that and we would do that in litigation in the bankruptcy court where we were very comfortable, um, it was our home court

00:50:23.919 - 00:50:41.439

and so um you know someone came to you depending on their profile, the first mortgage default you could deal with in a very traditional, uh, chapter 13 plan provisions we're gonna pay the. Ongoing payment and we're gonna pay the trustee to catch up on the delinquent

00:50:41.439 - 00:50:59.239

payment on the second mortgage we'd attack it litigation. Now this is something that you could do because you're a legal services lawyer with a with a a salary, you know, private lawyers just couldn't do this because it became cost prohibitive in terms of the fees or

00:50:59.239 - 00:51:21.800

well or other reasons. Well, a couple reasons. One is, is you have to develop expertise in truth and lending. The second reason is that most bankruptcy lawyers are um Cash-based, they're not uh contingent fee oriented. Truth and lending litigation is ultimately contingent fee because it's it's

00:51:21.800 - 00:51:40.889

got fee shifting, um, you know, when I went into private practice later, I did that type of case occasionally. But because of the, the economics of, of being in private practice, I had to pick my cases carefully. I only picked the ones I was pretty sure

00:51:40.889 - 00:51:55.449

I was gonna win and without too much difficulty. In legal services we, we didn't have to limit ourselves that way we can take, uh, take a bit of a long shot to try to help the client, um, but you can't do that in private practice. So

00:51:55.449 - 00:52:10.699

we're sending a mortgage is a rather, um, severe remedy. What kind of truth and lending violations or tilla violations, um, would, would give rise to that remedy? Well, there's a term of art. It had to be material under the statute. The material ones had to do

00:52:10.699 - 00:52:29.399

with errors in the annual percentage rate. In the payment schedule. Um, not sure if failure properly described the collateral ranked as a material violation, but that was another one that we saw frequently. But the banks were, were making mistakes in that area often enough that you

00:52:29.399 - 00:52:50.060

could actually use it effectively. They, they amended the Truth in Lending Act in the early 90s. This is, I'm not sure I should say, but before they amended it, I would say there was never truth in lending. Disclosure statement that I saw that I couldn't find

00:52:50.060 - 00:53:07.320

a violation and of some sort, maybe not a material one, but I could always find a violation after simplification, it became harder but but still possible. So, so if when you started practicing in the bankruptcy area and, and you know, using it, um, to do consumer

00:53:07.840 - 00:53:22.320

law work or to, to, uh, represent consumers, um, how many bankruptcy judges were there in, in the, in the Eastern District of Pennsyl. We had 31 of them sat in Reading that was Judge Torowski and in Philadelphia there was Judge Goldhaber, who I mentioned earlier, and

00:53:22.320 - 00:53:37.159

Judge William King and um. Who did you appear? You, you appeared mostly before the, uh, the Philadelphia Judges Gold Ta came when I was at CLS and private practice. I, I got out to Reading a couple of times before Judge Tornowski. Was, was Goldhaber. Had he

00:53:37.159 - 00:53:53.399

had Goldaber Judge Goldaber been a referee under the, I believe he had, yes, I think he was appointed in like 1966. Do you wear a robe? Well, well, by the time I got there they were judges. They had become judges under the national rules some years

00:53:53.399 - 00:54:11.780

before, so he wore a rope. Yes, well, where was this courtroom back then? The bankruptcy court was in what was then the relatively new federal courthouse at 6th and Market Street. Uh, we had the 3rd floor. The 3rd floor had. Had two courtrooms, the clerk's office,

00:54:12.189 - 00:54:27.659

and initially, There was maybe it was on the 2nd floor, but in the building we would have uh space for the meetings of creditors. It was all one stop shopping back then in the 601 market, the building you're describing, I think it's called the William Green

00:54:27.659 - 00:54:43.429

Courthouse now Greenhouse, and that's, um, that's the main federal court building in the stories. The court of appeals sits on top, right, and the district judge is next, and then you guys were on the 3rd floor we were on the. Back then it changed later, but

00:54:44.459 - 00:55:04.860

what was the uh bankruptcy practice in Philadelphia like then? Doing pre-code, uh, both. Well, I, I can't really say much about pre-code because, you know, I did one meeting of creditors, uh, so it's really, uh, before my time, um. It was a real transition. I, I

00:55:04.860 - 00:55:22.389

think it took a fair number of years before everybody realized what a gold mine the the bankruptcy code was, um, but Philadelphia had a very vibrant. Commercial practice. I mean, I, I can remember going to court waiting for my case to be called and watching the

00:55:22.389 - 00:55:39.750

commercial cases, uh, being heard before Judge King and Judge Goldhaber and Philadelphia back then still had a lot of industry and, and the industry was dying, so there were a lot of bankruptcies and, and it was a very vibrant commercial practice from from my perspective as

00:55:39.750 - 00:55:59.469

a consumer lawyer at that time. Um, and, and when the uh when the code went into effect in '79, that was shortly after you'd begun practicing at uh at CLS, did you see any, um, kinds of cases that have become significant, I'd say, you know. Earmarks

00:55:59.469 - 00:56:15.030

or whatever of the of the new code things like student dischargeability, student loan dischargeability cases or cases like that or was this not on the radar? Well, I think initially. Because we too were learning how to use Chapter 13. I mean, I think back in my

00:56:15.169 - 00:56:35.790

early handling of Chapter 13 cases how little I really understood what I was doing, um, we were still doing a fair number of Chapter 7 cases, um, and during the fact they were all no asset cases, um. I Occasionally we'd see a student loan case, um,

00:56:36.040 - 00:56:52.929

which is now obviously a big deal under, under the code. I, I, it might, in the consumer area, there may be more student loan, reported student loan dischargeability cases than any other. Discharge exception, um, there's so many of them, but I, I did have one that

00:56:52.929 - 00:57:14.949

I recall, um, I had a, a case of a. Of the debtor where he actually had a master's degree. But he was Not able to use it and um. He was CLS eligible. And I brought the student loan dischargeability case in front of Judge King and,

00:57:15.090 - 00:57:29.610

and somehow I won, um. It, it was still a 5-year rule, wasn't it? Back then it was 5 years. He must have been under 5 years, um. And, and even under 5 years, Judge King was willing to say, I don't see his being able to repay

00:57:29.610 - 00:57:42.709

this, so I'm gonna discharge. There was enough undue hardship that uh. That the the judge ruled for on your client. I, I, I, I, I don't know what his reasoning was exactly. He didn't write an opinion, um, I, I don't think I could have won that

00:57:42.709 - 00:57:57.510

case some years later. That's for sure. Was it at some point under Brunner and, um, other case law, the certainty of hopelessness rule arose. Was that, uh, something that Judge King, uh, applied, or was it if he had a, I would have lost. Yeah, there you

00:57:57.510 - 00:58:16.949

go. Once you see those words in an opinion, you know that this charge is gonna be denied. It's uh it's a terrible standard. I even. Had the temerity And One of my opinions to drop a footnote suggesting that the Third Circuit, which has used it, uh,

00:58:17.520 - 00:58:35.030

relegated to the dustbin of history. It's, it's, it's, it's historically and legally incorrect, and I'm just very sorry that it's there um. Would you think the same if it was still a 5 year, uh, rule where the the loans were freely dischargeable after the 5? I

00:58:35.030 - 00:58:50.290

think that's a sensible policy choice. 5, even if you made it 7 years, I mean, which it was for a while, um, it would, it would make it similar to taxes. You'd say after a certain point if you're not collecting the money, then, um. You know,

00:58:50.489 - 00:59:08.290

it should be treated like, like any other debt. I, I don't see the reason why um student loans get this extreme treatment in under the bankruptcy code. Um, well, changing subjects a little bit or changing course a little here in our conversation, you argued a case

00:59:08.290 - 00:59:23.530

called, I think, Gardner versus Pennsylvania DPW uh in the, uh, in the 80s. Could you talk about that case? Yes, um, I was in front of the 3rd Circuit was the 3rd Circuit case, um, back then, and I don't know if I don't know if Pennsylvania

00:59:23.530 - 00:59:43.969

still does it, but back then if an individual was receiving public assistance and owned a home, the welfare department had a practice and it was based on statutory authority of entering confessed judgments against the individual for the amount of assistance the person was receiving. And by

00:59:43.969 - 00:59:56.959

doing so that it would impose a lien on the on the debtor's property. Could I interrupt you there? Uh, a confession of judgment I know is fairly peculiar to Pennsylvania and some other states but not all. How does that work when you say that the, uh,

00:59:56.969 - 01:00:19.060

housing authority could confess judgment? Well, basically just the. Consumer or debtors signing an agreement at the outset of whatever the relationship is that uh permits the creditor to enter a judgment against them upon a default rather than having to file a complaint and triggering the protections

01:00:19.060 - 01:00:37.729

of of uh. Defendant's ability to file an answer and and litigate the matter, um. So it's a judgment without a hearing. It's a judgment consent at the time of the contract. Now, in fairness to the state of Pennsylvania, the Commonwealth of Pennsylvania, um, in the Rules

01:00:37.729 - 01:00:53.969

of Civil Procedure, there are some building protections to keep, uh, That gives give the debtor some opportunity to contest the judgment before this any kind of execution against their property, particularly their home so they can open it up and have a trial under certain circumstances. Yes,

01:00:54.100 - 01:01:13.550

I mean, it's just the burden to the to the defendant, um, and the rules will slow down the execution process from what it used to be, but it's still, um. There's some tension between the the the practice and our. General notions of how due process tends

01:01:13.550 - 01:01:29.550

to work. Yeah, it shifts the burden pretty severely into the defendant's court. It does, yeah. So could you get back to the, so, so the Gardner case. Gardner was, was a, a bankruptcy debtor who had, uh, received public assistance and had a welfare lien. The lien

01:01:29.550 - 01:01:47.439

impaired the exemption against his home, and he filed a motion to avoid the lien under Section 522F. Now Gardner was, uh, a debtor in the Western District. And the lawyer there was a private lawyer asked for CLS to help him. Um, I don't know if we,

01:01:47.540 - 01:01:59.979

we helped him with the brief or we filed an amicus. I'm not sure what we did, but when it came time to argue the case, he asked us to argue it, so I argued the case in the in the Third Circuit. Uh, I think, I think

01:01:59.979 - 01:02:15.669

that was my 1st 3rd Circuit argument. It must have been exciting. It was always exciting in the 3rd Circuit. Did your client prevail? Yeah, we won on that one. the issue is whether the lien was an avoidable judicial lien. The Commonwealth was arguing that it was

01:02:15.669 - 01:02:33.030

a statutory lien because the ability, the authority to enter the judgment came from a statute, and, uh, the court rejected that, and the judicial lien was avoidable. It was as opposed to a statutory lien. Well, congratulations. It was, it was gratifying. What did you enjoy about

01:02:33.030 - 01:02:55.459

practicing bankruptcy law? A number of things, um, you know, early on, what I greatly appreciated about being in the bankruptcy court as opposed to State court and uh particularly state court, a little less so for federal district court. Um I felt I had much more of

01:02:55.459 - 01:03:14.090

a level playing field and, and that requires a little explanation. There's sort of two different things about that. When I first started practicing at CLS, so we're going, starting, say 78, early 80s, there was still a significant amount of hostility in the bar against legal services

01:03:14.090 - 01:03:30.679

attorneys. I'm not sure I can explain it entirely. I think it stemmed partly from a lack of understanding of who we were. Why, why would you people choose to do the kind of work you're doing for low pay rather than using your law degree to make

01:03:30.679 - 01:03:48.929

a lot of money and. Have the prestige of working for a big firm or. Something of that nature Um, and so some of them had some sort of political bias against us as if we were some crazy radical organization. Um, and, and, and in fairness though,

01:03:49.139 - 01:04:08.790

uh, if you came up against somebody who is representing another individual or sort of a, uh, a sole practitioner. The other side was paying their lawyer and we had a free lawyer. So we had to some extent that advantage and there was resentment about that. Um

01:04:10.209 - 01:04:32.399

Second, my particular work, I was regularly defending. Uh, my clients against various kinds of debt collection, you know, mortgage foreclosure or otherwise, and we were raising legitimate defenses, sometimes a little technical admittedly, but legitimate defenses and in response to our defenses, the collection lawyers when they

01:04:32.399 - 01:04:50.250

had a chance. To get face time with one of the judges, they would say, Judge, they borrowed the money and they still owe it. That that should be enough. I should win. Um, and that resonated with, with some judges. Didn't face those issues in bankruptcy court.

01:04:50.629 - 01:05:09.080

Uh, there's a, there's a famous story among CLS lawyers how, uh, I don't think it was me, one of our, one of my colleagues was, was in court and, uh, on some issue. And the lawyer on the other side trotted out the old, but they owe

01:05:09.080 - 01:05:25.270

the money argument and this was before Judge Goldhaber and Judge Goldhaber just looked at him askance and said, counsel, everybody who comes before me owes the money. What, what else have you got? Um, you know, and, and as time went on, I appreciated the practice in,

01:05:25.350 - 01:05:47.639

in bankruptcy court for other reasons as well, um, just in terms of Uh Professional, uh, satisfaction, um, and that satisfaction is that you, you had a statute that was very useful, uh, in terms of your, um, advocating for your clients and, and protecting them from things

01:05:47.639 - 01:06:09.679

that might happen. That's one reason and another reason is that. If you're representing debtors in in a bankruptcy case, you really Have the ability to shift your shift your uh what's the right word, your your focus in a way. I mean some of what you do

01:06:09.679 - 01:06:28.370

as a bankruptcy lawyer is is ultimately it's just transactional work you're somebody comes in to your office. You get their profile, you get all the data and then you say, all right, here's, here's what you look like here's this black box, the bankruptcy code. If I

01:06:28.370 - 01:06:46.199

move you through that box and you come out the other end, you're in good shape and and if things are clear enough, it's just a transaction it's, it's nothing else, um, and. But at the same time, it's not always so clear what happens when you're in

01:06:46.199 - 01:07:04.939

the black box and you may have to litigate things. So it's, it's this nice combination of transactional work and litigation work and really, really suited me. I also appreciated the fact in in as a bankruptcy lawyer that uh it really tended to be very little real

01:07:04.939 - 01:07:25.199

cutthroat behavior um you know there's uh it's a small bar and there was generally a spirit of cooperation where you're gonna see the same lawyers all the time plus the fact that the very. Uh, essence in a way of bankruptcy practices, is. The system itself is

01:07:25.199 - 01:07:41.320

designed to push people towards agreement and consensus, so it's just a a pleasant place to be. I would agree, by the way, um, so, uh, David Scholl and Bruce Fox with whom you worked at CLS, were both appointed to the bankruptcy court, um, I think in

01:07:41.320 - 01:07:59.709

the 1980s, um, at, at about the same time as one another 1986, and who did they replace? Judge Goldhaber, who was retiring and Judge King. And uh it's, it's pretty unusual I think for um a lawyer to be appointed straight from CLS or similar organizations to

01:07:59.709 - 01:08:15.510

the bankruptcy court. Do you know anything about what might have led the Third Circuit to appoint the two of them at once? Yes, it was unusual to say the least. I, I would say as we watched the process and everyone was waiting the outcome of who

01:08:15.510 - 01:08:35.849

was going to replace. Judge Goldhaber and Judge King. That it was a tsunami. It was a shock to the system, to the whole bankruptcy community. No one saw this coming. The two legal services lawyers, uh, would be appointed to the federal bench. I, I can't say

01:08:35.849 - 01:08:50.369

I really know the reasons for anything the Third Circuit does, um, including when they picked me, but, um, I think there may have been a perception back then that the bankruptcy court had become a bit of a patronage haven, you know, not as bad as, as

01:08:50.369 - 01:09:07.930

the reports about bankruptcy rings in the 1930s, nothing quite that bad, but, but enough that I think it bothered the Third Circuit, and I think they were trying to, to send a, uh, clean house. Good government message to the entire bankruptcy community when they appointed Sholl

01:09:07.930 - 01:09:24.310

and Fox. Do you think that Sroll and Fox were also surprised? Oh yeah. Oh, I, I, I, well, I'm closer to Bruce than David, but yes, Bruce was surprised. And could you talk about what it was like at CLS, the community legal services when word got

01:09:24.310 - 01:09:42.668

out that they'd both been appointed? It was jubilation. I mean, we were, we're so proud and it, it made us finally realize that we were being accepted in the legal community in a way that that we had never been accepted before, um, and having. Said what

01:09:42.668 - 01:09:58.599

I, what I said earlier about the local bar. I, I, I really should add that in the years since it's really changed the the hostility against legal services lawyers, it waned over time. I think as some of the older lawyers dropped out of the system, uh,

01:09:58.829 - 01:10:13.930

contributed to that. And for many years now CLS and PLA, the Philadelphia Legal Assistance Program. Have been receiving very strong support from the bar, so it's a different world from, from the commercial bar as well as the uh as as the other and and and the

01:10:13.930 - 01:10:32.120

bar association as well, yes, so you were at CLS for more than a decade. Did you take a sabbatical from there at some time? Yes, I took a year away. From 1986 to 1987 to serve as uh Judge Fox's first law clerk and uh whose idea

01:10:32.120 - 01:10:45.649

was that? Well, he had to ask me um so I guess it was his idea, but it didn't take me long to agree. Did you enjoy being a clerk again after years of practice? Yeah, I really did. It, it, you know. First time I was a

01:10:45.649 - 01:11:01.049

clerk, I was really wet behind the ears, but at this point, I was uh. As a legal services lawyer, I was at that point a seasoned legal services lawyer, been in legal services for 8 years already, um, and I really did like it. It gave me

01:11:01.049 - 01:11:21.790

a break from the pressures of my, my docket, my case load, and allowed me to go back in the library, um. I also got to observe many more bankruptcy court hearings and it, it, the whole experience has broadened my knowledge of, of bankruptcy law, particularly in

01:11:21.790 - 01:11:41.569

the commercial area which I, I got to learn much more about. You know, there is a huge divide between Commercial and consumer practitioners, they, they are generally on parallel paths and intersection is very, is very rare. Uh, commercial bankruptcy lawyers know their way around Chapter 11

01:11:41.899 - 01:12:02.029

and asset sevens, consumer practitioners know Chapter 13 and no asset sevens, um, and neither side knows much about what, what the other does. It's part of the reason once I was in private practice, um. I got lots of referrals from the commercial practitioners um but back

01:12:02.350 - 01:12:20.910

when I was clerking for Judge Fox it it really for the first time enabled me to start to see the whole picture and see how the whole code worked together and, and how policies in commercial cases and and consumer cases are analogous in many ways. Did

01:12:20.910 - 01:12:36.370

he give you a new perspective on, on the nature of the commercial practice as well? Well, I got to see how they practice and, and better sense of, of what day to day life was like as a, as a commercial practitioner. Um, the, the other thing

01:12:36.919 - 01:12:54.939

about, um, Being there in that first year, um, where it was all new for everybody it was new for the bar to deal with these guys they didn't know anything about, um, and it was new for for David and Bruce, um, but I got to see

01:12:54.939 - 01:13:14.120

how, how the two new judges and Judge Fox in particular were changing some of the culture of the bankruptcy court, which I think was part of the, the purpose Third Circuit had with them, um. One thing is Judge Fox. Stop the practice of taking phone calls

01:13:14.319 - 01:13:34.830

from, from lawyers, um. Making it clear that he considered it an ex parte communication. And they couldn't talk to him. Uh, this was a cultural change, um. I, I'm not criticizing the predecessor judges. They served under the act and under the act, the judge had a

01:13:34.830 - 01:13:48.870

lot more administrative responsibility. It would make sense to have the lawyers talk to the judge informally from time to time, but Judge Fox was very clear. He's a federal judge. You don't talk to lawyers outside the case, um, and it was my job as a clerk

01:13:48.870 - 01:14:04.879

to tell them that, and some of them were a little nonplussed. They just didn't incredulously he won't take my call. Um, and, and the code had shifted a lot of the administrative responsibilities away from these new bankruptcy judges right now at the time it was, it

01:14:04.879 - 01:14:21.600

was still in the judiciary because you had the analysts, um, this is before the US trustee, but the, but the judges Fox and Scholl were saying with, with judges that as they thought of, you know, with real barriers between them and, and the bar. The second

01:14:21.600 - 01:14:40.859

thing is Judge Fox really increased the formality in the courtroom, um. I, again, not as a criticism, but I think. Uh, judges Goldhaber and King were a little less formal about evidence and the rules of evidence and a little bit more, uh, in their minds they

01:14:40.859 - 01:14:55.529

would probably just call it being practical and, and, you know, I, I understand that, but with, but Fox was very formal and you know when a case was called I saw it time and time again. In fact, when I was on the bench, I had to

01:14:55.529 - 01:15:10.259

do it from time to time and the lawyer would get up. And start saying here's why I'm here here are the facts here's why I'm right here's why you should rule for me and then sit down and Judge Fox would look at them and say, very

01:15:10.259 - 01:15:28.669

nice, thank you for that opening statement. Um, are you calling any witnesses or do you have any evidence to present? And they'd be shocked, um. They then figure out that maybe they needed to ask for continuance and Fox was very nice about about granting them, um,

01:15:28.709 - 01:15:43.029

you know, over time this diminished Mos figured out you have to treat this like a real court case when you come to bankruptcy court, um, but it still lingers. I, I had to do it every now and then but not very often, and that is largely

01:15:43.529 - 01:15:58.689

due to Judge Fox and the, the federal bankruptcy rules which I think were. Aimed at making bankruptcy proceedings more similar to those provided for by the Federal Rules of Civil Procedure were only what 15 years old or so at the time. So a lot of these

01:15:58.689 - 01:16:13.979

people had practiced under a much different circumstance and. I imagine they were fairly surprised by some of the new requirements of these two new judges. They were, um, so what kind of, um, uh, business bankruptcy cases did you see when you were clerking for Judge Fox?

01:16:14.209 - 01:16:31.049

Well, the whole gamut, there was all kinds of Chapter 11 cases. There was some small ones. There's some big ones that famous case, the pay court case was there some asbestos cases were, were there, um. The consumer cases were there were some Chapter 13 issues and

01:16:31.049 - 01:16:43.879

some nondischargeability issues. CLS was being very active in bringing litigation, but I was walled off from all the CLS litigation because I was on leave and I was gonna go back. So Judge Fox had no law clerk for those he was handling those on his own.

01:16:44.750 - 01:16:56.910

And and how long did you clerk for Judge Fox? One year and I was ready to go back to practice after a year. I hope he appreciated it. I hope he appreciated that you'd, uh, spent the whole year with he thanked me and I thanked him,

01:16:57.009 - 01:17:17.459

you know, I mean, you know, he, he was 36 when he got the appointment and, you know, we had some bankruptcy experience. He didn't know much about. Commercial bankruptcy law either so um he's incredibly brilliant guy um and he doesn't lack in, in self-confidence but I

01:17:17.459 - 01:17:30.740

think he was probably a little nervous about taking this on and uh I, I was a little bit of a security blanket for him. Yeah, I imagine you were, um, so you were, you were also second chair, um, in a case, uh, after I think you

01:17:30.740 - 01:17:45.435

went back into. Practice, uh, at CLS, um, in uh with David Searls in a case called uh Pennsylvania versus Davenport, uh, that went up to the US Supreme Court. Can you talk a little bit about that case? Yes, that case raised the issue whether in a

01:17:45.435 - 01:18:08.379

Chapter 13 case a debt for criminal restitution was dischargeable or non-dischargeable under Section 523. Uh, a 7 of the code or or in general. Uh, in a prior case, Kelly versus Robinson, the court held that criminal restitution was accepted from discharge in a Chapter 7 case

01:18:08.680 - 01:18:35.950

under Section 523A7. Um, as. Representatives of the debtor, we had a very strong plain language argument that it was a different result under Chapter 13 because Chapter 13 nondischargeability provision 1328A incorporates some subsections of 523A but not 523A7 seemed pretty, pretty clear. Um, case happened to

01:18:35.950 - 01:18:55.660

start with Judge Fox, um. After I was there, um, he ruled in favor of the debtor. Third Circuit affirmed. The Supreme Court granted the, uh, Commonwealth of Pennsylvania's writ of certiorari, and this is 1990. This is the first Chapter 13 case heard by the Supreme Court

01:18:56.229 - 01:19:11.439

after the enactment of the bankruptcy Code. Um I was the 2nd chair in the case that was argued by David Searls did a great job, um, and of course one of the things I remember was how a second chair I was also thought of myself as

01:19:11.439 - 01:19:24.629

the understudy. So you know, on the morning of the argument somehow Dave couldn't go. I had to be ready to go, but Dave was, was fine and he was able to do it and he did a good job. Uh, it was just so interesting to. To

01:19:24.629 - 01:19:39.819

be there, be that close to these iconic figures, but also to realize that they didn't know hardly anything about Chapter 13. It was just, um, so a bit to our surprise, you know, we were trying to count heads to figure out how we would do, uh,

01:19:39.870 - 01:20:01.649

we won 7 to 2. I forget who the second negative vote was, but one of them was Blackman, um. It was a short-lived victory in a sense. A few months later, Congress amended Section 523A and incorporated um 1328A and incorporated 5237, um, so criminal restitution became

01:20:01.649 - 01:20:24.089

nondischargeable even in a Chapter 13 case, but Davenport, uh, became an important case on statutory construction. I mean, I guess this was, um. This was a very energetic period in terms of textualism reemerging as the dominant, uh, you know, jurisprudential tool let's call it, um, and

01:20:24.089 - 01:20:38.569

you won on it good for you. One of the things that was nice about the process leading up and we put incredibly hard work into into the brief, um, I think the section I wrote was, was the argument that the court used if I remember correctly,

01:20:38.649 - 01:20:53.520

but we had a lot of different arguments. We got a lot of help from. From, uh, one of the local law firms and I'm blanking on which name it is that's embarrassing, but, um, it people stepped up to help us because, you know, we've never been

01:20:53.520 - 01:21:13.109

in this before. That must have been a, a great experience. Um, did, did you leave CLS again after you, um, after you went back after clerking for Judge I, I came back to. CLS in 1987. I stayed a few more years. Um, I had worked. At

01:21:13.109 - 01:21:25.180

some point I'd worked in the North Philadelphia office right before I went, uh, for a few years before I went uh to clerk for Judge Fox and then when I came back I went back to the Northeast office in Kensington and I stayed there till 1991

01:21:25.180 - 01:21:39.660

and then I left to go into private practice with a consumer bankruptcy law firm which was then called Miller and Miller. Some point later became Miller Frank and Miller, but back then it was Miller and Miller. And and what prompted the decision to go into private

01:21:39.660 - 01:21:56.169

practice for the first time? Nothing unique. I'm probably feeling a little stale after 13 years looking for some kind of a change, partly, uh, succumbing to being courted a little bit by the by the private bar, but also I think realizing that I might be able

01:21:56.169 - 01:22:16.979

to expand what I would do, uh, different kinds of work other than the, the big niche, but the niche of of handling, uh, low income client cases who were Miller and Millering. Interesting, uh, couple of guys. By the way, I think we first met when. The

01:22:16.979 - 01:22:30.180

senior miller, uh, introduced me to you back in those days, I think in the halls of bankruptcy where all the deals were struck. I'm not mistaken, but who, who were they? We talked a little bit about them. They're a father and a son, Mitchell Miller and

01:22:30.180 - 01:22:50.279

Jack Miller. Mitchell. was about 70 years old when I joined the firm and uh son Jack is my age. Um, I think they started their bankruptcy practice in '78 when the code went into effect. They were by far the first real successful volume consumer bankruptcy practice

01:22:50.279 - 01:23:03.740

in the district. Mitchell was always proud. I think at one point it had to be pretty early on, but I think he said he had 90% of the confirmed chapter 13 cases in the district. Um, they asked me to join the firm, I think, to help

01:23:03.740 - 01:23:16.140

deal with some of the volume because they were volume practice and, and they were hoping to expand the practice a little bit. They thought I could do some of the trustee work for Mitchell. Mitchell was also a trustee, and he had to farm that out to

01:23:16.140 - 01:23:31.529

other firms. Um, and maybe do some chapter 11 work. This is Chapter 7 trustee work. Yes, it was a chapter 7 trust where he would, he, he thought he would use your time rather than, um, somebody else, some other lawyer I another firm, right? uh trustee

01:23:31.529 - 01:23:47.859

who's a lawyer is allowed to hire his own law firm to represent him. Um, you're supposed to be careful about that, but it is totally permissible. Um, now going into private practice. Did give me the opportunity to broaden what I was doing much like, like I

01:23:47.859 - 01:24:08.990

thought, um, once I was representing. Debtors other than low income debtors, a lot of other issues came up, a lot of exemption issues came up that I hadn't seen before and um I had Probably more flexibility in fashioning some of my chapter 13 plans. They tended

01:24:08.990 - 01:24:27.589

to have a little more income, um. And because I was, I started representing Mitchell a bit and getting involved in Look, I was on my own really and I was learning, uh, how to do it to start handling some small Chapter 11 cases and, and, and

01:24:27.589 - 01:24:46.240

11 of the other things that's nice about bankruptcy, I made some friends among bankruptcy lawyers and when I started handling these cases I needed to ask questions and I could call people up guys like, uh, Scott Victor and Paul Mashmeyer, um. They would talk to me

01:24:46.240 - 01:25:00.509

and, and give me a reality check on what I was what I was trying to do. It was, it was very helpful, but this combination of things actually created a, a real niche for me. Um, I was a lawyer who handled mostly and I was known

01:25:00.509 - 01:25:21.419

for it consumer cases, but I could be involved in a Chapter 11 case, um. And and represent Chapter 7 trustees. That was pretty rare with very few lawyers. Kind of did that, um, maybe that's changing a little bit, um, since the enactment of uh subchapter 5,

01:25:21.569 - 01:25:34.169

but because more consumer lawyers are learning a little bit about Chapter 11, but back then it was very rare. I, I can think of one or two other lawyers who did a little bit of that. I used to like to use the analogy that that I

01:25:34.169 - 01:25:53.229

was, uh. I used a basketball analogy for that one. I would say, um, I was like a #2 guard in a basketball team, you know, 65 guard that that I could be the shooting guard in the consumer cases, but I could go and play small forward

01:25:53.229 - 01:26:10.479

in, in the Chapter 11 cases were these mostly family businesses, family owned businesses, yeah, for the most part, so they're, they're, um, the medium size cases, um, and I'm sure that the owners wanted to. Hold on to the business notwithstanding the absolute priority rule, um, which

01:26:10.479 - 01:26:28.640

was probably a difficulty sometimes anyway, yeah, no question, um, getting back to the consumer practice for just a minute before we talk more about, um, the business cases had, um, the senior Miller, um, practiced under Roman numeral 13, I think so. He didn't tell me, didn't

01:26:28.640 - 01:26:40.089

tell me that much about it. Didn't talk much. I, I had, I'm not sure. I think he might have had. And some of that and and also had more of a general practice as well and and who was the other miller Jack Miller you said yes,

01:26:40.100 - 01:27:01.120

Jack, um, is his son and Jack, uh, was a workhorse in in handling lots and lots of cases. He, um. Moved on eventually and for the last, oh, probably 15 years he's still at it. I've retired, he hasn't, um. Has been one of the staff attorneys

01:27:01.120 - 01:27:17.399

for our Chapter 13 trustee in Philadelphia so he knows what he's doing. So, so, uh, getting back to, um, the, the kinds of chapter 11 that you handled, um, uh, I recall that one of the main reasons for enactment of the new sub 5 a few

01:27:17.399 - 01:27:34.790

years ago, uh, is that Chapter 11 had really become too expensive, uh, for even a fairly large family owned business to, uh, to use to restructure. Were things different then? I don't think it was any different then. um, I, it was always difficult for small business

01:27:34.790 - 01:27:51.810

to invoke Chapter 11, mostly due to the expense and the fact that by the time. A small business. So kind of hunkers down to visit a bankruptcy attorney, they'd usually blown through most of their cash. I, you know, one of the things I, I used to

01:27:51.810 - 01:28:09.560

feel about, um. And it's true for consumer cases and the commercial cases. People feel a great sense of shame in going to a bankruptcy attorney and, and they put it off and put it off until they absolutely have to and and they put it off too

01:28:09.560 - 01:28:31.040

long um when when I was in private practice I would have initial interviews with the small the struggling small business owners. And I didn't do a uh. A, a careful quantification of this, but I always had the impression. That the ratio of those initial interviews, people

01:28:31.040 - 01:28:44.790

came to me saying it's something bankruptcy can do for me to cases that Aligned in such a way that a chapter 11 could make sense and I could file for them was probably I did 20 interviews for every chapter 11 case I filed, which is part

01:28:44.790 - 01:29:04.169

of the reason that while I always allowed my initial interviews in consumer cases to be, uh, without, without the obligation. I always told you I'm gonna count this time if I take your case, but, but you're not paying me anything to get all my advice today,

01:29:04.549 - 01:29:19.629

um. I charged for for Chapter 11 consultations because I'd spent 2 hours with people and 19 times out of 20, that was the last I saw of them. Do you think that people delayed and spent down all their cash because of the shame? Yes, yeah, uh,

01:29:19.759 - 01:29:35.629

do you think that, and, well, also the, the sense of denial and a sense that they were trying things that they thought would, would pull them out of the problem. Do you think that there's the same, um, stigma and shame, uh, for the managers of large

01:29:35.629 - 01:29:54.720

corporations, or do you think it's more limited to the smaller businesses and consumers? I wouldn't know because I wouldn't have had them as clients, but I would guess much less so. Look, I, I would spend a lot of time and with my. Um, consumer clients. Counseling,

01:29:54.799 - 01:30:10.799

I mean trying to explain to them how what where their what their situation was sort of fit into the universe that um you're in a society that has lots of credit that has lots of risk it's expected there's gonna be cases like that that this is

01:30:10.799 - 01:30:26.209

gonna happen to people and and it's it's not doesn't make you a bad person. Um, and that that's why we have this law here. It's, it's designed to help you and to try to make them feel less bad about it. Um, did they buy it? Some

01:30:26.209 - 01:30:44.080

did, some did. Um, and You left, um, well, let me ask you before we leave again, the, uh, the question of small businesses, how did you deal with the absolute priority rule? Um, I'm sure that the goal, once people got past that there was no. Easier

01:30:44.080 - 01:30:55.870

answer than bankruptcy was for them to keep the business in the family, um, but how did they deal with the fact that I'm sure they weren't paying their creditors in most cases. How did we just had to get the vote. I mean, it's a question of,

01:30:56.040 - 01:31:11.240

of plans and, and look in, in the smaller cases there's generally not a lot of participation and interest from the creditor body. So if you kind of keep your fingers crossed and, and try to get a couple of votes sometimes. And I saw this as a

01:31:11.240 - 01:31:28.259

judge. Sometimes the votes would be 2 to 2 to nothing, you know, that's all you needed. So you left Miller and Miller, um, after a while and joined another firm, uh, DiDonato and Winter Walter. Why was that? Why did you leave that? Well, I think. This

01:31:28.790 - 01:31:44.029

financial strength of Miller and Frank and Miller was waning at that point, but at this point, bankruptcy had become very popular. A lot of people were dabbling in bankruptcy and, and siphoning off cases, so we were, we were struggling a little bit, I think, and, um.

01:31:45.350 - 01:32:04.029

Going with uh. Ed DiDonato and Paul Winterhalter gave me a choice, gave me a chance to be, uh, connected with what was a small commercial firm and, and I could, I could do both again and um. And they were interested, I think, in the consumer work.

01:32:04.069 - 01:32:20.089

Consumer work provided nice cash flow for them. It's a little different than, uh, when it's just a pure commercial practice unless you're representing, you know, the, the creditors, so that you were doing a lot of chapter 13s and small business. I continue to, to, um. Do

01:32:20.089 - 01:32:39.140

consumer work there and you know back then. I think it it already developed that advertising had become a very big thing, you know, when I first started Miller and Miller, um, We would take out an ad in the yellow pages and that worked that brought cases

01:32:39.390 - 01:32:52.910

and the lawyer who took out the full page ad, which was very expensive, he got the most cases. We took half a page because it was it was a lot of money, um, but over time that stopped working and there's all these other ways that people

01:32:52.910 - 01:33:09.379

were, were getting cases. But when I went to DiDonato and Winterhalter, I had, uh, I've been doing it long enough and I knew now knew enough people. I just let the phone ring and I got referrals and the same kind of work for all my cases

01:33:09.379 - 01:33:27.160

it was great. It sounds great. um, so tell me a little bit about something that doesn't involve getting paid, um, but the, uh, the consumer bankruptcy assistance project in the Eastern District also referred to by its acronym CBAP CAP, yes, um. CAP came about in the

01:33:27.160 - 01:33:47.509

early 90s. At, at that point, I was, I was in private practice. Somehow I was asked to be a member of the Philadelphia VIP board volunteers for the engine program. That's the main pro bono. Civil, uh, program in Philadelphia. It's, it's Heavily supported by the bar

01:33:47.509 - 01:34:04.939

association, it's, it's does a wonderful job. It's excellent. And initially bankruptcy cases were going to VIP and some members of the bankruptcy bar figured we should have our own organization, um, and you know you needed the movers and the shakers, the big firm lawyers to really

01:34:04.939 - 01:34:24.200

make this happen, um, and, and they got on board with this, guys like, uh, David Sykes and, and Lawrence Lichtenstein and probably Michael Bloom, but others, um. And I almost served as a liaison between them and the VIP board the transition. The bankruptcy cases and these

01:34:24.200 - 01:34:48.799

were gonna be no asset set, but bankruptcy cases from VIP to CAP and CBAP was formed um in around '92 roughly um and it provides uh volunteer attorneys to eligible low income Philadelphia residents for uh Chapter 7 cases. But was there any um pushback from um.

01:34:49.490 - 01:35:07.939

The Chapter 7 consumer bar or was it just that those people they didn't want those cases. People couldn't pay them, so no, no real pushback, um, uh. And, and what else did you start doing when you were in private practice, um, uh, in addition to CAP,

01:35:08.020 - 01:35:22.850

were you involved in other kinds of, uh, associational activities or CLE programs or things like that? I did. I started doing lots and lots of CLE programs which I always enjoyed doing because. And it's funny, I used to think I probably never got a referral from

01:35:22.850 - 01:35:35.569

it, which is what, why I think a lot of people try to do CLE programs, but it forced me to stay on top of my game to make sure I still knew what I was doing and hunker down, do the work. One of the things I

01:35:35.569 - 01:36:00.009

did was, uh, PBI. would run a bankruptcy program every year of some sort, and I would Do a um A a synopsis of all of the Pennsylvania consumer cases, you know, just name of the case, a little explanation blurb about it, um, which meant I had

01:36:00.009 - 01:36:15.540

to sit down and read all the cases, um, of the of the previous year and then write something about it and I did that for a lot of years, um, so that was one thing I did and, and, uh, beyond the faculty and occasionally, uh, help

01:36:15.850 - 01:36:36.430

do some course planning, um, for PBI um I also was active in the. The local bankruptcy bar organization, the Eastern District of Pennsylvania Bankruptcy Conference, um, the number of years I was on the education committee. I helped put together. Some of the hypotheticals and and materials

01:36:36.430 - 01:36:53.799

for the annual CLE program that the program did and and you say that you um that you assisted in the transition um of the bankruptcy cases from the VIP program to CAP, um, did you stay involved in CBAP in the years that followed? Yes, I, I.

01:36:54.169 - 01:37:08.819

Till I went on the bench, I was on the board the whole time and for 2 years I was the president of the board and who, who did the work of representing uh these clients at CA. Um, We would get volunteer attorneys from the bankruptcy bar,

01:37:08.930 - 01:37:27.870

some of them from usually the associates and the big firms, um, and some of the consumer practitioners would, would take some cases. We also develop relationships with the law schools and we use student interns, uh, for the cases, um, who could practice under a practice rule,

01:37:28.370 - 01:37:44.009

um. Were there administrators also we had employees. We had a small staff. There was an executive director in the early years it was a woman named Julie Doogary did a great job getting it off the ground, um, and At one point or another was typically a

01:37:44.009 - 01:38:02.779

staff attorney who could handle some of the cases but mostly was working with the other lawyers, the volunteer lawyers, um, and, uh, sometimes paralegal we would get grant money sometimes we get the grant money from. Um, what organization would give us the grant money? Um, the

01:38:02.779 - 01:38:18.899

American College of Bankruptcy gave us my thanks largely to David Sykes. David Sykes, I can't say enough about David Sykes. Dwayne Morris at the time. He was a, yeah, Dwayne Morris, and he, um, just made CAP his mission. I mean, he had a lot of missions,

01:38:18.979 - 01:38:33.850

but CAP was one of his missions, um, and he, uh, made sure it was, it was running that he had. He was staffed. He got people on the board. He raised money, really did everything. He's wonderful. You were on the board also for a number of

01:38:33.850 - 01:38:53.549

years. And did you serve as president too? Yes, in '99 to 2001, something like that. Do you think CAP accomplished his purposes? I think so. I mean, it, it's a. You know, it's doing no asset sevens, which is a significant. Purpose and benefit of of bankruptcy

01:38:53.549 - 01:39:12.450

law because even though uh if it's a no asset case there's probably no ability of creditors to really reach anything that the person has that that uh they really need that they could take execute against but uh. But it does really relieve a lot of it

01:39:12.450 - 01:39:29.450

really is a true thing that it just relieves stress for people. It makes people's lives better. Also, it would help some specific things like driver's licenses that could be restored, um, after motor vehicle judgments have been entered, um, so I think so. I, I think, um.

01:39:30.339 - 01:39:45.290

It's always a struggle to maintain a roster of volunteers and to keep the energy going, and now it's 30 years. It's a long time for a volunteer organizations to keep going, but I, I think it's been a success. Um, and, and you mentioned before we uh

01:39:45.290 - 01:40:03.160

talked further about CAP that you also involved in the Eastern District of Pennsylvania Bankruptcy conference which was formed when about the, the early 90s early 90s, yeah, and what was the purpose of that conference? Uh, it's an interest group organization. It's designed to promote. The interests

01:40:03.339 - 01:40:19.850

of the bankruptcy bar foster collegiality, um, it's really made some efforts to, uh, sort of cross pollinate the consumer and the business lawyers so at least they know each other a bit, um, I think it works by the way. I, I remember going to those conferences

01:40:19.850 - 01:40:32.899

and meeting a lot of people I, I wouldn't have been in touch with on the business side and, um, um, very much enjoyed that part of it myself. I could just add that for a minute, I agree, um. So, um, is it kind of like a,

01:40:33.229 - 01:40:49.910

I guess like a more local American Bankruptcy Institute, that kind of an organization? Or is it something different? Yeah, I think that that a fair description, um, and, and how, and were you involved in its formation? No, I was, I was not an important person back

01:40:49.910 - 01:41:07.649

then, uh, not me. It, it was largely, uh. Which you might say some of the pillars of the commercial bankruptcy bar wanted to, I, I think they saw that. There were organizations like that in other districts and they said, well, we're an important place for bankruptcy.

01:41:07.689 - 01:41:24.959

We should have the same thing. So it was David Sykes again, uh, Michael Bloom, Michael Teman Wolf Block, uh, Rick Felling who later became a judge. I think Henry Summer was involved and maybe Leon Foreman at the end of his career, uh, participated in the formation.

01:41:25.450 - 01:41:41.930

Um, I was active in the conference, but I was, I just watched it get formed. And you, you also, um, on a more national uh level um served on the judicial conference advisory Committee on the bankruptcy rules, the federal rules of bankruptcy procedure for a number

01:41:41.930 - 01:42:02.089

of years, I think starting in the late 90s. Uh, could you tell us about that? Yeah, I was on the advisory committee from 1998 to 2005. Now, the advisory committee is a judicial conference committee that reports to the standing committee uh on rules, um. And it

01:42:02.689 - 01:42:19.839

begins the process of enacting rules under the Rules Enabling Act, which is a 3 year process, uh, where the drafted rules are put out for comment and if they're recommended by the advisory committee, they go to the judicial conference if the judicial conference OKs them, uh,

01:42:19.970 - 01:42:38.979

they can be seen by Congress and. Uh, ultimately the Supreme Court, uh, but the reality is I don't think I've ever seen anything that the judicial conference sent. To Congress or the Supreme Court that wasn't adopted. So and for the most part what the advisory committee

01:42:38.979 - 01:42:53.540

sends to the judicial conference is also adopted, so it, it, it plays an important role. Who else serves on the who serves on the committee? There are a couple bankruptcy, I think it altogether it is 15 to 20 people and then and there's some bankruptcy judges.

01:42:53.580 - 01:43:17.370

There's some Article one article. Article 3 judges, uh, a few private practitioners, some attorneys from the, uh, Department of Justice, US government attorneys, and several law professors. How did you become a member? Well, my predecessor on the committee was Henry Summer, um. As his term was

01:43:17.370 - 01:43:35.009

nearing its end, I think he suggested my name to, uh, then Chief Judge Edward Becker, the Third Circuit, and with his help, I was offered the position which, uh, the appointment comes from came from Chief Justice Rehnquist. I always thought it was. Uh maybe I'm just

01:43:35.009 - 01:43:49.399

making this up. I always thought it was a bit of like equivalent of camp Col war that Judge Becker said, well, we have somebody. From the 3rd Circuit on on the committee, let's get another 3rd Circuit person I think I was in the right place at

01:43:49.399 - 01:44:09.979

the right time for that. Could you talk a little bit about the other, uh, folks with whom you served on that committee? Um, yes, um. Some of the people are who's who of of. Bankruptcy giants from the late 20th century, um. I overlapped with uh a

01:44:09.979 - 01:44:33.160

number of people. One's Leonard Rosen from uh New York City. I think he's known for, uh, significant work in the, uh. 1970s, uh, New York City fiscal crisis and, and the, and the Chrysler bailout, the first one. The first Chrysler, uh, Gerald Smith, who probably less

01:44:33.160 - 01:44:49.680

well known, but I think he was a significant lawyer from out west. Um, Ken Clay, um, who was a drafter of the bankruptcy code when he served on as a lawyer for the House Subcommittee in '78 and later became a very prominent Chapter 11 attorney in

01:44:49.680 - 01:45:06.720

California. Professor Alan Resnick, who was, when I first started was the committee reporter who I learned so much watching Alan as the committee reporter and then after he finally retired of that, he did it for a long time, they put him on the committee as a

01:45:06.720 - 01:45:25.680

member. And he, uh, became editor in chief, co-editor in chief of Collier on bankruptcy. Uh, Judge Thomas Small served on the committee and was chair for a while as well. He's well known for advocating small business bankruptcy, uh, a small business bankruptcy chapter didn't succeed in

01:45:25.680 - 01:45:46.529

achieving, but. Eventually we did get uh subchapter 5 of chapter 11 which has many of the same qualities um uh Judge maybe also a little less well known Christopher Klein from California is very thoughtful, thoughtful guy, wonderful people, and oh, last but not least Jim Rudolph,

01:45:46.919 - 01:46:02.669

uh, from Illinois who, uh, a judge, Northern District of Illinois and, uh, he also later chaired the committee. And I think, um, in his retirement he's actually taken on a lot of um consumer appellate cases, hasn't he? Yes, he was also, I think, president of ABI

01:46:02.669 - 01:46:15.540

one and he's a mover and a shaker there. So did the committee meet in person or by phone? We met in person and, and I will say it met in generally in nice places. I got to see some of the United States that I hadn't seen.

01:46:15.669 - 01:46:31.339

How often did you meet? Twice a year and, and what was it like to work with this group? I think the best way I can put it is that. It probably came as close as you can come in the real world to, uh, almost a platonic

01:46:31.339 - 01:46:52.680

ideal. The people serving on the committee from the different constituencies that were out there. For the most part Left their private interests at the door in the interest of just trying to draft the fairest, most workable procedural rules as possible. The judges who served on the

01:46:52.680 - 01:47:12.899

committee at the time and I, and. You know, I was a A consumer bankruptcy lawyer at the time I was the only one on the committee and I had uh a per a per uh perspective that nobody else had, um, but I would talk with the,

01:47:12.930 - 01:47:30.580

the other judges and they all raved about being on the committee. They loved being on the committee and I. Now I understand why having. Being a member of the judiciary. There are a lot of judicial conference committees. The judiciary is run by committees, although ultimately it

01:47:30.580 - 01:47:47.419

funnels up to, to, um. The executive committee and the Supreme Court, but Many of the other judicial conference committees, their job is to figure out how to allocate scarce resources. So when you serve on one of those committees, you're going there with an institutional agenda to

01:47:47.419 - 01:48:03.330

try to protect your institution and so there's politics and there's a lot of infighting. Um, there really wasn't any, uh, almost none of that on the advisory committee. For the most part, everyone was, was there as an honest broker. There were disagreements, but they were based

01:48:03.330 - 01:48:23.870

on Policy differences that people may have had and I think uh the judges in particular found that very refreshing. How often did you revise the rules, uh, during that period? Well, the first, the, you served 3-year terms, so I'd say in the first. My first term

01:48:23.870 - 01:48:40.390

and first couple years of my second term, um. We probably put out. 3 to 6 rules changes a year, not a lot, and there was a lot of thought and effort went into each of the rules. The other thing that I always was very impressed by.

01:48:41.299 - 01:49:00.689

Anyone could write to the committee and say something. This rule stinks. This rule doesn't work. You should change this rule. Anyone who sent something in. Got a full treatment, full analysis, and Professor Resnick would write up a whole thing about it, about what they wanted, reasons

01:49:00.689 - 01:49:17.009

for reasons against, and then just present it and say you're, you're the committee, you make the policy choice. Did many of those rules, those unsolicited suggestions for change, get into the rules? No, no. But they were treated, but we had reasons for understood. What was there

01:49:17.009 - 01:49:34.620

did you have any interaction with the Supreme Court? Not really. And the closest I came once was, was, uh. At a 3rd Circuit judicial conference. I was, I was in the receiving line to, to meet Justice Souter and Chief Judge Becker was there and Judge Becker

01:49:34.620 - 01:49:50.240

was so nice. He, he was an amazing in that he. Remembered everybody he met and he knew who I was. We didn't have much reason for it and he lauded how I was on advisory committee, you know, um, and Justice Souter said something about, well, I'm

01:49:50.240 - 01:50:08.310

glad you're doing a good job because we have no idea what you're, what you give us. We just say it's OK. Um, I, I understand that, um, the first. Codified bankruptcy rules, let's call them as opposed to general orders, uh which became effective in '73, but

01:50:08.310 - 01:50:24.740

we now call the federal rules of bankruptcy procedure, were expected at one time to include a fair amount of substantive law in addition to procedural bankruptcy law. Uh, do you have a sense that the court's expectations for the rules, um, were more limited at the time

01:50:24.740 - 01:50:38.299

that you served on the, uh, on the advisory committee? There's no question that's true. There was a period of time. And I didn't go back and do the research to give you the citations, but there was a period of time when the Bankruptcy Act provided. And

01:50:38.299 - 01:50:57.540

I don't even know when it was repealed, but that the Supreme Court had authority to enact certain substantive provisions under certain sections of, of the Act. That that was repealed and it was very clear that the role of the advisory committee was limited to uh procedural

01:50:57.540 - 01:51:15.660

rules and we were all very well aware of that and a lot of the debates. From, or I should say from time to time, the debates veered into the question of is this proposal substantive and if it is, we shouldn't do it, um, did anybody express

01:51:15.660 - 01:51:31.589

any views about the old Um, more expansive authority of the rules committee, or was it people just didn't it was history, yeah, and, and I think properly so. I mean, why should, why should this appointed committee make something of law? I mean, think about it, it's

01:51:31.589 - 01:51:44.950

kind of crazy. Um, let me ask you a little bit about the committee's work in the years leading up to the enactment of, uh, the Bankruptcy Abuse Protection and Consumer Protection Act or BAPSEPA. Um, you were on the committee, I think when the bill was enacted,

01:51:45.029 - 01:52:06.419

weren't you? Yes, um, could you tell us a little bit about that period of time? I, I was. Attending a CLE program. In Southeastern Bankruptcy Law Institute, sadly that's in like Atlanta they, they had asked me to to come and I was there when it the

01:52:06.419 - 01:52:25.919

word passed that it had been enacted and you kind of knew well this is part of history. It was really powerful, powerful thing, um. Now it wasn't a shock. A couple of years before it had come very close to passing and the committee had geared up

01:52:25.919 - 01:52:48.779

to start working on on rules, but then it didn't pass and we put it aside, you know, why do all this work, but then it passed, um. And um. We had been dealing with some of the same policy issues. That found its way into the statute

01:52:49.390 - 01:53:11.410

before the statute was enacted. Some of the, some of those things which are essentially. An increase in consumer debtor disclosure requirements had been proposed as rules um by the uh Office of the United States trustee uh for whatever reason they had developed the mindset similar to

01:53:11.410 - 01:53:28.319

the proponents of that SEPA at at the time. Um, and there was some, it was, it was the first time that I've been on the committee that there were actually some. It's too strong a word but kind of pitched battles about policy, um, you know, I,

01:53:28.890 - 01:53:47.609

I was. Leading the charge to try to stop those provisions. I thought they were unnecessary and wrong, and I had by that point I've been on the committee long enough and developed relationships that I probably had some, some political clout on the committee. Um To put

01:53:47.609 - 01:54:03.279

this in context, if I recall, there was a bankruptcy commission and I think it was '98 and that was also very contested on the, in this area. I think, um, Judge Edith Jones was uh, was appointed to that committee and. I think the reporter was Professor,

01:54:03.359 - 01:54:19.680

now Senator Elizabeth Warren, and those issues were very much, it was a battle that went on for really 7 years on and off, um, in terms of whether to make the consumer bankruptcy law more punitive. So were there, were there others on the rules committee that

01:54:19.680 - 01:54:36.120

were taking in the position of the executive office of the US trustee that it was appropriate to do that, or was it really just that office if you recall? Well, the US trustee was leading the charge. There was. There were some Judges and uh some of

01:54:36.120 - 01:54:56.049

the other members. Maybe we're somewhat sympathetic to it, but it. This is a committee that almost always reached consensus and this was a bit of a shock to the system to have have. The political fights from the outside making its way inside the committee. I, I

01:54:56.049 - 01:55:19.649

can remember one. One time when I was engaged in a very sharp debate with the uh Director of the US trustee's office. And the committee chair. Uh He was a very good chair. He, he got us through the whole Bai thing. Thomas Zilley, uh, Washington state

01:55:19.649 - 01:55:33.430

district court judge. He basically said, right, we're gonna break for lunch, and he just took the two of us aside and said, You go have lunch together, work it out, and I sat down and I made some concessions and he made some concessions and we got

01:55:33.430 - 01:55:46.990

to something that we agreed we agreed on which was to the relief of of the whole committee, um, but that hadn't happened in the prior we hadn't nothing like that we hadn't needed anything like that before that that shows the times that we were in, um.

01:55:47.620 - 01:55:59.859

As it turns out, whatever it is we agreed to became irrelevant because before it could be enacted, BAPSEA came in and we just started over with everything. So, so talk a little bit about that. What was it like to be on the rules committee when um

01:55:59.859 - 01:56:18.669

BAPSIA made such um significant changes, uh, to the, probably the most significant changes since that was a really powerful experience. I mean, you have to remember. Uh, I use this expression again a shock to the system. Everybody was, was wondering what's this all gonna be like?

01:56:18.759 - 01:56:40.390

It was such a Tremendous change in in bankruptcy policy, um. It was a 6 month period between enactment and effective date. Um Most of the changes were in the consumer area, not all, but most of them were, and it required, I, I probably should have looked

01:56:40.390 - 01:56:55.020

it up. I don't remember the number of rules that we had to and forms that we had to modify or enact for this. It, it had to be between 50 and 100 is my guess. Um, I, I remember Alan Resnick at that point was a member,

01:56:55.109 - 01:57:08.729

I think of the committee, saying something to the effect that in. In a few months, the committee would have to do about 10 years' worth of rulemaking and and it was only about 4 months because we had to prepare a report and send it to the

01:57:08.729 - 01:57:24.109

judicial conference by September. We the statute was enacted the end of April. Um, so we had to have basically everything done the end of August and send it to the judicial conference so they could set in motion the process for putting the rules in effect as

01:57:24.109 - 01:57:41.899

interim rules because you we couldn't bypass the 3 year rules enabling Act process and you know I said earlier we had done some preps for this but nothing prepared us for the 6 months. It was a ton of work, um. And I was in the mix

01:57:41.899 - 01:58:01.089

of it. I was the chair of the Um, consumer rules and form subcommittee, which because I guess there's 20 members on the committee, we had the real working group was myself, uh, Judge Weed off, and a very good lawyer from, uh, the US Trustee's office named

01:58:01.089 - 01:58:18.509

Mark Redmiles, and the three of us really the core group and one of the, um, debates, policy debates that drove, um. That that 7 year period that culminated in the enactment of BAPSEPA was whether there should be a means test for consumers, uh, and if one

01:58:18.509 - 01:58:35.910

was enacted that forces most above median income consumers into Chapter 13 or nothing ineligible for 7. The, the means test in the code is fairly complicated and gave a lot of people headaches when it was first enacted. Um, what, what, what was required of the rules

01:58:35.910 - 01:59:02.250

committee with respect to the means test. Well, I think our biggest task was after we. Kept reading the means test provisions. I, I, we, we all said the same thing back then. Every time we read the, the provisions we learned something that we, we noticed something

01:59:02.250 - 01:59:17.060

we hadn't noticed before. I, I must have read it 50 times and got 50 new ideas and it's not even all in the same part of the code, is it? You have to. Well, most of it's in, in 707, um, but. I, I, I think our

01:59:17.060 - 01:59:37.339

biggest task and I think our biggest accomplishment was drafting the forms necessary to implement the means test provisions because the debtor had to make these disclosures and they had to fit into these statutory tests, um. The, the drafting was done by Judge Weedol, Mark Redmiles, and

01:59:37.339 - 01:59:51.339

I, and I, and I remember thinking. Um, as we were trying to figure out how to create something out of nothing, I mean we had no template to start with, we just had the statue, and the analogy I used in my mind was I was. Uh,

01:59:51.359 - 02:00:09.430

thinking about how I had Apple computers were different from MS DOS computers and Apple had a graphic interface, um, and that, so I wanted to, to take what was in the statute and have it be visible on the page. Uh, another analogy, maybe a better one,

02:00:09.560 - 02:00:28.729

and I think maybe, uh, Gene Ridolph is responsible for this, is the Form 1040 which just takes you through a catechism and. Um, and we must have done 100 drafts till we finally got something that, that we brought to the committee. Um, we came up with

02:00:28.729 - 02:00:46.879

the form. Um, and I'll say it's been fine-tuned and modified a bit, but the core concepts are what we put together, you know, 20 years ago. It's still there. So, so what did you think about the means test at the time, uh, as a, as a,

02:00:47.009 - 02:01:08.919

on a policy basis? Thought it was a bad idea. Uh, it's unnecessary when you have schedules I and J. I think it's cumbersome. It's overinclusive and underinclusive. If you're trying to weed out bad faith bankruptcy cases, I still believe that, um. You know, I remember thinking

02:01:08.919 - 02:01:36.040

that. And maybe there was some statistics after the code was enacted after BAPEA was enacted that something like. Without the means test. You would Have something like maybe 5% of the cases. Should be considered for bad faith and the means test was only gonna catch like

02:01:36.040 - 02:01:55.379

1/10 of them so you're doing all this work for like 0.5 of 1% of bad faith cases something to that effect. It was just it it absurd. I thought do you think that it had the effect of um. Reducing the number of people who. By By

02:01:55.379 - 02:02:12.569

rights ought to be entitled to a discharge because not to go through a five year plan and the percentage of discharges is fairly low in that area, not especially, I mean, Henry Summer in the interim between enactment and and uh. Effective date of BASEA made the

02:02:12.569 - 02:02:30.470

general statement that he thought that. The main effect of the statute was going to be that it was gonna make bankruptcy more cumbersome and more expensive, but that for the most part for the people who got into the system, um, that it would. Only changed the

02:02:30.470 - 02:02:49.740

outcomes on the margins and I think that's true. So I think it did keep some people out, but if you got in, um, you generally most people got the relief they, they saw it just costs a lot more money for no reason. I think I should

02:02:49.740 - 02:03:11.560

mention I think that's in part because My perception at least is that in most districts, the boots on the ground, and I mean, the debtor's attorneys. The US trustees, the case trustees, and maybe even to some extent the, the creditor lawyers. All work to rationalize. This

02:03:11.810 - 02:03:32.609

clumsy statue, um, and try to make it make some sense um I don't think it's resulted in a lot of worthy bankruptcy cases being booted out of the system. I suspect that in most Chapter 13 districts. The key To analysis of the confirmability of a plan

02:03:32.609 - 02:03:52.399

is still schedules I and J and that the means test doesn't do that much, uh, you know, in my 17 years on the bench. I think I only wrote one opinion or I had one case that any kind of semi-direct means test issue that I had

02:03:52.399 - 02:04:10.220

to solve a statutory issue about because the trustees and the debtor council would work it out. You don't think it discouraged people from filing for bankruptcy though? Well, I think to some extent it did. Filings dropped, well, filings dropped dramatically. Um, at some point, um, but

02:04:10.220 - 02:04:23.689

there were other reasons for that as well. I, I, I, no, I don't think so. I think after a while everybody got used to it and once the bar. Developed their form. The consumer bar developed their forms and and got efficient. Um, I don't, I don't

02:04:23.689 - 02:04:38.410

think it affected that much. You think it resulted in higher recoveries for creditors? No, no, OK. So on balance, um, notwithstanding that you think its effects were fairly minimal overall, you still think it's a bad idea though. Yeah, I think it's just a lot of unnecessary

02:04:38.410 - 02:04:54.459

work and cost. So, so getting back to the rules for, for a moment, um. Uh, what was it like to draft, um, the rules and the forms given your views of BAP then and now? I remember feeling a little bit of a weight on my shoulders.

02:04:54.609 - 02:05:13.149

I thought I had a great responsibility. I was the only consumer attorney on this committee, um. And by the way, while this was going on and there were lots of meetings that we were having and there wasn't Zoom back then, um, some of it we I

02:05:13.149 - 02:05:29.259

guess we did on the telephone, but I was going to Washington a lot um. I was also running my practice at the same time, so you know, well, I remember telling my wife at the time I said look, for the next 6 months I I'm gonna

02:05:29.259 - 02:05:42.839

need you to like step up because I'm gonna really be working harder than ever. I said the payoff may be. That that Sepa added a new judge position and I'm gonna apply for it. So maybe I'll maybe I'll get that. So I said maybe this will

02:05:42.839 - 02:05:57.080

be worth it, but I, but I need you to, to give me some slack. Did, did you have, um, uh, backup at, uh, Dionato and Winter or I assume you were, you were there at this time. Um, did you have other people who could pick up

02:05:57.080 - 02:06:10.629

the s there was an associate who could, who could, you know, handle routine stuff for us and. And Paul and and Ed could could also do that if need be, but for the most part I had a more of a standalone practice within the firm, right,

02:06:10.720 - 02:06:24.990

so it must have really come out of your own hide, yeah, I just, I was working very hard during that time, but, but I felt I was. I was on a national stage doing important work so uh so you mentioned that a lot of the debates,

02:06:25.160 - 02:06:39.160

uh, on the rules committee, uh, were with respect to whether the rule, um, might collide with a provision of the code or be contrary to a provision of the code. Um, did that ever, um, become an issue with is there ever been any cases you know

02:06:39.160 - 02:06:58.540

of where uh rule was challenged on the ground that the, the, uh, rule exceeded, uh, the statute? I'm thinking of a I'm not sure this that's this is what you're referring to. There's a famous case called House laden to do with objections to proofs of claim.

02:06:59.640 - 02:07:13.029

That might have been one, but it, it's an occasional argument, but it's pretty rare that it comes up. And did you think that that's in part because the committee's so, um, uh, diligent and rigorous about avoiding that kind of you know it sounds cliched, but I

02:07:13.029 - 02:07:27.910

think that's really true. So, so let's, uh, I think we've, we're up to, um, about the time that, uh, lucky for you, Babsepa was, um, enacted because, um, a new judgeship opened up, uh, in the Eastern District. Is that how it happened? Yes, they edited a

02:07:27.910 - 02:07:46.229

position. They had data from the early 90s, which is when that legislation started brewing, I guess that showed the need for additional filings, uh, additional judges filings had actually receded a bit since then, but no one wanted to touch the, it was like, no, no one

02:07:46.229 - 02:07:59.669

wanted to touch the bill when they were trying to push it through, so they left that position in place. So, so is this a permanent position or a temporary position? This was. A temporary position. I think it was good for 10 years and the way it

02:07:59.669 - 02:08:19.669

worked is that. Once you got past the 10 year period, whoever left the bench next, whether it was that person or or. Uh, already set position, uh, that wouldn't be replaced. The judge should disappear and in various districts they've extended that right because they were able

02:08:19.669 - 02:08:33.270

to determine that there was a need. I think in our district it was extended initially once and at some point it was not extended and then when one of the judges left, the judge was not replaced and and the volume that gave rise to that temporary

02:08:33.270 - 02:08:50.410

position was, was mostly in the consumer docket. No, I think because it was in the early 90s, I think that was, there was an explosion of commercial cases nationwide, including in the Eastern District. There were a lot of these one asset, uh Chapter 11 cases and,

02:08:50.500 - 02:09:09.770

and probably also an increasing consumer cases as, as, uh. Lawyers and debtors realized the benefits of the bankruptcy code. It took a few years before people realized what we had after the code was enacted. Yeah, I, I, I know this. The, the term strategic bankruptcy has

02:09:09.770 - 02:09:26.830

been used by some people to refer to that realization that that companies realize that. Bankruptcy wasn't business bankruptcy wasn't necessarily such a stigmatized undertaking anymore, but could be used as another business tool. I think that's part of it, but I think the conventional wisdom is that.

02:09:27.750 - 02:09:44.819

The Tax law changes in 1986 that I don't understand somehow uh put a lot of one asset real estate entities in the position where they uh couldn't survive without some kind of reorganization. Did did you handle any of those single asset real estate cases when you

02:09:44.819 - 02:10:06.919

were in practice? Yeah, um, so we're, we're up to, um, about 2006, um, when you were appointed, uh, bankruptcy judge for the Eastern District of Pennsylvania. Could you tell me, tell us how that came about? Well, uh, Once BAPSEPA was enacted, the Third Circuit put out

02:10:06.919 - 02:10:25.799

a notice for applications. I applied. I was interviewed by a merit selection committee, and then, uh, interviewed by the 3rd Circuit and. Um, the way it works is the day of your interview you find out. So I was interviewed at around noon, about 2 o'clock, I

02:10:25.799 - 02:10:42.270

got a call from, uh, Chief Judge Sirika. Did you know you'd made the shortlist, uh, that the merit selection committee sent up? Well, you do because you're asked to schedule a time or you're told when you have to be available to be interviewed by the 3rd

02:10:42.270 - 02:10:58.470

Circuit. So you you send back a few dates when you're available and then no, no, no, they tell what they, they actually do is they. Sit en banc twice a year and whenever that week has been scheduled in their calendar, that's when they're gonna interview for

02:10:58.470 - 02:11:10.500

bankruptcy judge because they're all there and they call you the morning of telling you what time to show up. No, they, they give you a little more. I see. I'm sorry, I misunderstood that. I see. So what, what was it like to be, uh, interviewed by

02:11:10.779 - 02:11:30.339

the entire 3rd Circuit? It's, it's interesting. It's, it's very stylized, it's a. Big room with a very long table and all the judges are sitting around the table. Their protocol is, uh, each to make a little opening statement if you want, but then each judge gets

02:11:30.339 - 02:11:47.020

one question. I suppose they wouldn't stop a judge that want to ask a follow-up question, but, uh, they tend not to do that, um, and the questions vary. Some are real softball questions, um. On occasion, uh, you might be asked a policy question, a bankruptcy policy

02:11:47.020 - 02:12:03.700

question, um, you know I've talked to others who've reached that stage in the application process and you know whether you, you get the appointment or not, you really feel honored to be considered, uh, for the position by circuit court court judges. And if you get it,

02:12:04.439 - 02:12:22.640

It's an amazing feeling to get that phone call from the chief judge. I imagine it is. Did you prepare for the interview in any special way? Actually, I did. I went and I, I read the Third Circuit, recent 3rd Circuit bankruptcy cases, um. That's about all

02:12:22.640 - 02:12:39.810

that I did because I figured anything else they're gonna ask me was personal, right, right? Who, who did, who, who did you replace when you took the bench? Um, well, technically it was a BapSIA position, but in fact, I ended up replacing a judge because right

02:12:39.810 - 02:12:59.370

at the same time, Delaware, the District of Delaware received. One or two positions actually I think they received 4 positions now it comes to mind and for one of them, uh, Kevin Carey was sitting in the judge in the Eastern District of Pennsylvania. He applied to

02:12:59.370 - 02:13:21.379

be appointed in Delaware and they selected him, so he vacated his seat. I took his seat, which was uh. The seat that um Judge Sholl had and Judge King had before Judge Sholl um I'm in that line of succession um and um so that SEPA position

02:13:21.379 - 02:13:40.540

was open again and they advertised for it and uh. By June of 20 2006, uh, Gene Fitzsimon was selected as as a bankruptcy judge. who were the other, um, uh, members of the bankruptcy bench in the Eastern District at the at the time? Yeah, Diane Sigmon

02:13:40.540 - 02:13:58.500

was chief judge as I was selected and took good care of me as a baby judge, um, in addition to Gene FitzSimon who came on a little later, uh, sitting judges were Bruce Fox, Steven Reslavich, and when I was appointed. Uh, at the same time, Richard

02:13:58.500 - 02:14:16.890

Felling was appointed, uh, for the district, uh, for the division of Reading, um, and he succeeded Tom Twardowski. Had you practiced with any of these people? Oh, I practiced in front of them all, all regularly with them in fact, the last case I had. It was

02:14:16.890 - 02:14:33.819

a dischargeability case. Um, that I worked very hard on and I lost an initial decision before Judge Sigman, Chief Judge Sigman. I wrote a motion for reconsideration. And I put a lot of work into him and I still didn't win. So the last thing I did

02:14:33.819 - 02:14:48.870

was I got slapped down by Judge Sigman. I felt bad because I thought my clients were worthy, but she didn't see it that way. How heavy was the docket when you took the bench? Well, there was an explosion of of cases, mostly Chapter 7, but also

02:14:48.870 - 02:15:12.549

chapter 13 cases, uh, right after the, um, right before the enactment date of, of BAPSIA, um. There was a realization that the law was changing and and practitioners were were I guess urging their clients gets get in now um I think that our clerk calculated that

02:15:13.120 - 02:15:33.810

in the two week period before I think it's October 28th, 2005 was the effective date they got filings that were the as many as they had gotten in like 9 or 10 months before that, um. Now after that flood, then there was then there was a

02:15:33.810 - 02:15:48.879

desert. There was a whole huge drop in filings for a lengthy period of time after that and I assume that a lot of the, the filings at the peak. Before the uh beforeAPIA went into effect were no asset sevens which worked their way through the system

02:15:48.879 - 02:16:08.149

pretty quickly or not, probably most of them that's right. And then, uh, things slowed down, but initially when I there was I still felt the effects of it when I inherited Judge Carey's docket and um. I had very long lists. I mean, I, I mean some

02:16:08.149 - 02:16:29.790

of it was that I was inefficient. I'm sure starting, but I would. Uh, my, my consumer chapter 13 list, um. Which I would start at 1 o'clock on Tuesdays. Um, I was going to 4 and 5 o'clock straight on the bench like one case after another,

02:16:30.220 - 02:16:46.660

um, lists were 80, 100, uh, eventually little by little they came down, um, you know, probably. Most of my time there, the average was 30 to 40 on the list. Now that doesn't mean I'm actually hearing 30 or 40 cases a lot of them are continuances

02:16:46.660 - 02:17:01.740

or they get continued, but the big difference between 30 and 40 and 100. It's a long list. Who, who was your, um, standing chapter 13 trustee at the time? It was William Miller was the trustee, and, and did what was it like to be a judge

02:17:01.740 - 02:17:13.980

working with a chapter 13 trustee as opposed to a lawyer? Um, dealing with the chapter 13 trustee, did your view of the job change at all, or did you so thoroughly understand it after all those years of practice, you pretty much know what you're gonna get?

02:17:14.469 - 02:17:31.599

I, I think I knew what I was gonna get from the chapter 13 trustees, but one thing did my perception of one thing did change over time, and that's my. Perception of the US trustee now. Requires a little explanation also as a practitioner, I was not

02:17:31.599 - 02:17:48.679

fond of the US trustee. I don't think any debtor attorneys are because you've got a vision for the case and you know, you, you got enough problems dealing with your client and the creditors. You don't need this outsider coming in and mucking up what you're trying

02:17:48.679 - 02:18:05.150

to do and it kind of felt like they were interlopers. Now, you know, that was just an emotional feeling. I understood they had a role to play. Um And over time, you know, I, we all figured out how to get along with the US trustee. As

02:18:05.150 - 02:18:31.419

a judge, what I realized was that. The US trustee was the closest person to me in the room in the sense of looking at the case from an institution, a judicial uh bankruptcy code policy institutional perspective interests and. The, the US trustee's insights were sometimes very

02:18:31.419 - 02:18:45.819

helpful to me. And the fact they could, the other thing that they could do is they could raise things that struck me as obvious needed to be raised and I didn't have to do it from the bench, which is always more difficult and clumsy, um, so

02:18:45.819 - 02:19:03.120

over time I really began to appreciate the United States trusting as as really helpful now they. To go back to my old views of them, they punt on some of the hard issues, but, but on balance, um, they brought something to the game in all the

02:19:03.120 - 02:19:17.730

cases in the consumer cases as well as the business. No, they, they actually did not participate much in the consumer cases. I think from their perspective they've delegated that to the Chapter 13 trustee. And for the most part to the Chapter 7 trustees except for things

02:19:17.730 - 02:19:30.290

like objections to discharge, they'll they'll take those over for them. But in the chapter 11 practice you, you, you came to appreciate the role that they played uh more than you had in practice, yeah, and what kind of issues did you have to decide in your

02:19:30.290 - 02:19:51.239

first years as a judge? What kind of issues were coming in? Before you. Well, initially there were a slew of statutory construction issues under um. BEC of some of the new provisions, so one of them had to do with the credit counseling requirement when people didn't

02:19:51.239 - 02:20:10.879

quite do exactly the way the statute required. I had many hearings where I had to dismiss the case. Who's making the objections. Um, sometimes the chapter 13 trustee, um. I'm trying to remember how we, we divided it. I mean, you certainly the judge could bring it

02:20:10.879 - 02:20:22.440

up sua sponte, but I think we tried to avoid that. I, I don't really remember now because we're going back quite a ways, um, was it that people had not had just not gone to the counseling or that the counseling they thought they'd gone to didn't

02:20:22.440 - 02:20:36.629

qualify, both, both of those things happened. Was it a question of money too. It sometimes, but it wasn't supposed to be because if, if you don't have the money there was supposed to be a provision where the credit counseling agencies would give it to you for

02:20:36.629 - 02:20:53.209

free, but um you have to, I think know to invoke that and who knew, right, um. So there were a lot of those cases and, you know, a lot of time where I had to spend my time explaining. Is to prose debtors, I have to dismiss

02:20:53.209 - 02:21:09.309

your case, um, and tell them a little bit about what some of the consequences are, which is the next issue, which is the impact of of multiple filings on the automatic stay on the 362A3 and A4. So those issues and I wrote, I wrote on a

02:21:09.309 - 02:21:29.339

3. I tended not to write on, on the credit counseling issues because I just wanted to do what I thought was right, um, I. My view is that. I Tried to interpret the provision holistically and um where I could find a way to let the case

02:21:29.339 - 02:21:46.889

go through I would but still I dismissed a lot of cases. Did it ever strike you as a consumer lawyer previously that there was a that it was somewhat anomalous, I guess that, um, Chapter 11 managers are not, um, asked to go to credit counseling. I

02:21:46.889 - 02:22:02.669

mean I can. Sure I can say this now. I, it, it, I thought it was an outrage that they put in the consumer credit counseling requirement. I at the time. There was a belief that it was in part, uh, from some of I guess the statements

02:22:02.669 - 02:22:21.940

made by the uh lobbyists that you couldn't trust the. Debtor lawyers to, to, uh, do the right thing that they were bringing people into bankruptcy who, who. Who shouldn't be there they could resolve their problems outside of bankruptcy and which is absolute garbage it's absolutely not

02:22:21.940 - 02:22:38.179

true. I, I think they, you know, they have the provision in there that allows for the counseling agency to try to set up a composition basically, and I think at some point I, I saw a statistic that it's like 0.1 of 1% ever have ever invoked

02:22:38.179 - 02:22:53.639

that. I mean it, it. It's completely unnecessary that they do that. Do you think it might be some help for someone who has to get through 5 years of a chapter 13 or however many years of a chapter 13 in terms of, um, the way they

02:22:53.639 - 02:23:08.059

might handle their finances so that they don't, you know, fall into a hole and and lose and lose the discharge. You know, having never participated in one of them, I'm not sure to the extent that they, they work with people. And force them to sit down

02:23:08.059 - 02:23:22.299

and try to do a budget, yeah, that's beneficial. I, as a practitioner, I had to do that as a lawyer, which is not my favorite part of the job, but it was, it was important. I, I knew that for a lot of my clients this was

02:23:22.299 - 02:23:38.000

the first time they had ever done this to sort of figure out what were they spending their money on in some uh organized way. Um, but I don't think you need to have mandated credit counseling for that, um, at all. You talked a little bit about,

02:23:38.110 - 02:23:54.929

um, uh, frequent filers and under the, under the new, um. Under VAPSIA, could you talk a little bit about that? Well, yeah, it limits the limits the automatic stay, um, you had to make a finding that, uh. If there was a prior filing within 1 year,

02:23:55.059 - 02:24:11.730

6 months I wait long enough, I'm not remembering some of the details, um, that the case was filed in good faith, which was a term of art that Uh, you got some guidance from the statute that was sort of clumsy about, about how you're supposed to

02:24:11.730 - 02:24:24.719

apply it, um, and I remember, you know, from my, as each of these issues came up for me, what I would do is I would sit down and say, all right, I'm gonna write an opinion that's gonna help me figure out. What my methodology is gonna

02:24:24.719 - 02:24:39.200

be for these cases, and I would write one opinion, work it all through, read all the cases, synthesize them whatever way I was comfortable with, and then I would, after that I would apply that, which is why I always felt I got much more efficient. As

02:24:39.200 - 02:24:56.419

a judge, after. I again, I was self-consciously aware that I was a little slow about some things and it was everything was hard, very hard the first time. Less hard the second time I was seeing an issue, but the 3rd time I was I think I'm

02:24:56.419 - 02:25:09.580

getting this down. And, and after that you're seeing it over and over again, you know what you're doing after a while, but writing the opinions is often what helped me help me do that, and I assume, um, the lawyers practicing in front of you know what

02:25:09.580 - 02:25:26.500

your position is on these if they read the cases they read the Consumer practitioners don't have a lot of time to really stay up on the case law regularly, you know. In the old days you you'd call it reading advance sheets as they came in. Not

02:25:26.500 - 02:25:40.839

too many of them are doing that and and again I understand why. So, um, were there a lot of pro se debtors that appeared in front of you? I don't think our district had an inordinate number. I think we would sort of probably win average of,

02:25:41.009 - 02:25:54.959

of the country maybe 44% something like that. Yeah, do you think that the, um, uh, that the, the CAP, um, had something to do with that, or was it just that? It just there were, there were consumer lawyers who could, um, do the work for a

02:25:54.959 - 02:26:17.589

price that people could pay. Both, I think contributed to that, um, a lot of judges, um. Say that the thing that kind of shocks them the most when they when they uh take the position is how isolated they become from a lot of the people they

02:26:17.589 - 02:26:31.349

used to um socialize with and be with um poor other lawyers in the area and there's obviously a lot of issues that are, um, present in terms of being close friends with somebody who's practicing in front of you. um, uh, what did you feel isolated or

02:26:31.349 - 02:26:44.839

were you, uh, pretty comfortable with the change? I was pretty comfortable with the change, um. I mean, to some extent I noticed the difference, but for one thing, It was just so exciting to get up in the morning and go into work and and work in

02:26:44.839 - 02:27:01.620

chambers that um it wasn't like I felt like I was missing out on anything um it took a little time to get used to being called a judge and having lawyers when you saw them outside of the court treat you with such formality, but you, you

02:27:01.620 - 02:27:19.950

get used to it and, and aside from the, the work itself. Being so rewarding, uh, you develop a sort of a A separate social network, uh, in the judiciary and make friends with other judges, um, plus you have a whole lot of other outlets to, to

02:27:19.950 - 02:27:34.990

socialize, right? And, and you stayed involved in a lot of organizations as well, um, both, um, judicial organizations and bankruptcy organizations you were involved in the ABI a little bit I think. Well, I followed the ABI. I was not a player in the ABI, but um.

02:27:35.500 - 02:27:53.429

I read their stuff every day and, and how about the National Conference of Bankruptcy? I was a loyal member of the NCBJ and um I, I would participate in uh. The programs put on by the FJC, the Federal Judicial, what's the C stand for Federal Judicial

02:27:53.429 - 02:28:12.549

Conference conference is it, um, the FJC, you know, if, if you can get appointed and you really wanna be doing things outside of handling your docket, they are their administrative office has committees. I never served on any of them because, quite honestly, I thought they were.

02:28:13.219 - 02:28:24.820

They have some influence, but I didn't think they were worth my time. A lot of judges like, like to be on them. I didn't care. They are judicial conference committees, if you can get on them like the advisory committee on bankruptcy rules, but there's a whole

02:28:24.820 - 02:28:38.769

host of them. I was never on any of them, um, and then you have all your local and national CLE programs, so there's a lot of things you can do it's outside your, your docket. Did you have a career law clerk? I did have a career

02:28:38.769 - 02:28:56.089

law clerk. Um, her name is Samantha Levy Green, and I was lucky enough. She worked with me for my entire 17 years as a judge. She was wonderful. I was lucky to have her. And during that time she had two children, took a couple leaves for

02:28:56.089 - 02:29:13.830

them, and one of them is, uh, soon to be ready to go to college. Amazing. That's it is amazing. Did you, did you, um, have other clerks too or just the career law clerk just initially I, I started with, um, a judicial assistant. Um, and My

02:29:13.830 - 02:29:32.269

judicial assistant found she didn't have enough to do. I understand. So she left and I hired somebody as a halftime judicial assistant, and I had a half-time law clerk. So I had 1.5 and half. Eventually after some years I went to two law clerks, um, so

02:29:32.269 - 02:29:49.120

one rotated. One was a term clerk and one was my permanent clerk, and I had a number of clerks over the years. I had great clerks. That's great when I was the judge. What, what was, um, what, what's your view of how? Chambers function well for

02:29:49.120 - 02:30:04.440

a judge, um, and I've heard other judges describe how in some senses it's like being in a lifeboat, um, because you, you really are, um, this kind of self-contained unit in terms of your work. What, what, what, what are your thoughts about, um, uh, how a

02:30:04.440 - 02:30:14.120

good chambers functions? You, you did mention that you had really good clerks, and I'm sure that has a lot to do with it. Um, but do you have any sense of that, or is it just that it went so smoothly you never really had to think

02:30:14.120 - 02:30:25.000

about it? I didn't have to think about it that much. We had very little drama occasionally it was a little drama, but not, not a lot, um, I mean, I thought of us more not as a lifeboat. I thought of us as like a small law

02:30:25.000 - 02:30:44.120

firm in a way with, with a particular job to do that was just different than representing clients and um. I mean one of the things that I thought worked really well in in my chamber is that we all did everything. I mean, I on some issues

02:30:44.120 - 02:30:57.200

in some cases I'd say, you know, I'm gonna do the first draft, and I'd let them tear my draft apart, and they often did and on others I said, you know, you take it, you write the first draft and, and we, everyone in chambers worked on

02:30:57.200 - 02:31:16.530

everything and um. And there were times there actually were sometimes when people needed. Needed uh To be working only part time, I would have. Three clerks because I'd have a full-time clerk and 2 halftime clerks, you know, um, so I had a lot of different, uh,

02:31:16.540 - 02:31:34.860

ways of getting input and I, I just think that what made it work was that we, we all, um, contributed to each other's work product. What, what did you enjoy most about being a bankruptcy judge? I assume you liked it. I loved it. It's hard to,

02:31:34.889 - 02:31:56.070

it's hard to give it up, um. I think what I like most was, was. You had this sort of mix of modes, mix of activities, you know, between the lists. And you know, actual handling actual contested hearings and trials, uh, I felt like when you're on

02:31:56.070 - 02:32:09.250

the bench, I, I felt like I was on the bench a fair amount. Um, I think I was on the bench much more than say district court judges are, are out there on the bench, and I like the fact I was interacting with lawyers and and

02:32:09.580 - 02:32:27.490

parties and witnesses, you know, it, it's very stylized and I have a lot of power, but there is still a real human interaction going when you're, uh, dueling with a lawyer when controlling the courtroom trying to keep the case moving, uh, it's, it's about personal interaction

02:32:27.490 - 02:32:43.099

and I and. And I like that at the same time. As a judge, I had the opportunity to go back into chambers and go into the library and research and write and be a bit of an academic and I could do both. I mean, how often

02:32:43.309 - 02:33:03.549

is that is that possible? It was really satisfying and and there was one other thing I, I really found. Rewarding Um It was just striking to me, you know. Had some pro se litigants and you know they're kind of at sea in the, in the courtroom

02:33:03.549 - 02:33:25.339

it's not their world um and frequently the posture of the interaction was that. The debtor was making some kind of desperate last minute request for relief. Um, involving preventing a case from being dismissed, which would then lead to a sheriff sale or they were facing an

02:33:25.339 - 02:33:41.879

eviction or some or utility shut off, something that is just bad, you know, they, they don't want it to happen. Um, and I, I really did my best to give them some respect and the, and the chance to tell me what they wanted to tell me.

02:33:42.660 - 02:33:58.990

And when I had to rule against them, I did my best to reflect back to them that I heard them and I understood what they were saying, but I had, but I would tell them why I couldn't help them and often after that they would thank

02:33:58.990 - 02:34:19.030

me, um, which made me. Suspect that in whatever their their journey was that got them so far down the path of of of difficulty, um, probably hadn't been too many people actually listening to them um and they felt that the process with me at least had

02:34:19.030 - 02:34:33.129

been fair and, and, and I also allowed them, I think sometimes to give up the ghost, say, all right, I gave it my best shot. Somebody heard me, told me why I can't, can't do it. I, I can live with it now. Um, and this happened

02:34:33.129 - 02:34:52.620

with some degree of frequency. I can't say I felt great afterwards because of, of what I was ruling on, but I felt some satisfaction out of at least the process for it. So, so you also, um, presided over some, uh, fairly, um, significant chapter 11, um,

02:34:52.830 - 02:35:09.809

as when you were a judge, um, including the Philadelphia Orchestra case. Could you talk a little bit about that case? Yes, that was one of 2 cases that I had and only 2 because Philadelphia is a bit of a chapter of backwater and during my era,

02:35:10.480 - 02:35:28.080

um, but it was one of two cases that had some significant public interest, uh, when I was handling that case, I knew that anything I said in the courtroom during that day would be in the newspaper and the wire services the next day as opposed to.

02:35:28.570 - 02:35:45.139

My usual situation where I'm toiling in obscurity and if I say something that afterwards I said maybe I shouldn't have said that, uh, I really wouldn't have too much to worry about so the orchestra case had two real issues in it. Um, the first was, uh,

02:35:45.150 - 02:36:08.419

a labor dispute there was a collective bargaining contract had, I think it expired and the musicians, uh, needed to negotiate a new one with, with the orchestra. And the second one was whether some of the Many different funds coming from donations, um. Had not followed all

02:36:08.419 - 02:36:25.849

of the proper. Uh, rules whether they had been, uh, uh, commingled and therefore may be subject to the claims of the general creditors and they were general creditors. I don't remember what what they were, but they had a very large number of unsecured debt. And ultimately,

02:36:25.860 - 02:36:47.690

the case resolved favorably because the orchestra and the union uh reached a labor contract. Um, and that resulted in a consensual chapter 11 plan that was confirmed and all the, the commingling issues go away at that point. Uh, the orchestra exited Chapter 11 and is still

02:36:47.690 - 02:37:04.200

going on, which is great because it would have been a big loss culturally for, for the city, um. You know, as the presiding judge, the orchestra case is, is associated with me, but the real credit in the case should go to Steven Raslavich because he worked

02:37:04.200 - 02:37:17.559

long hours mediating the labor, the labor negotiations and got them to an agreement. So I got the credit, but he deserves the credit. He, and he was your colleague on the bench at the time. um, who were the players in the case? It was it, I

02:37:17.559 - 02:37:33.990

assume it was the union. Um, and the creditors committee with respect to the, uh, the donations or the endowment or whatever it was called, well, the creditors committee, I, I don't remember what the unsecured creditor body really consisted of anymore, uh, but there was, there was

02:37:33.990 - 02:37:52.129

a key players with the creditors committee, uh, the unions individually representing themselves, um, and the debtor, those are the big players, and you were also a judge in the, uh, chapter of 11 filing of, uh. Of the developer of the Philadelphia, the new building for the

02:37:52.129 - 02:38:06.719

Philadelphia Family Court, um, which, which did get into the papers a lot. I recall, um, they, they should have named at least one courtroom after me for that, but they didn't. Could you talk a little bit about that that is the other case that I handled,

02:38:07.169 - 02:38:20.280

uh, I suspect even more contentious at times than the initially it was, um, you know, some of the details are a little hazy to me now, but what I remember is that there was a falling out between the developer. He was a big developer developed lots

02:38:20.280 - 02:38:40.139

of uh of, of big buildings and the Pennsylvania Supreme Court, which was behind the development, um, I had the notion that, uh, the Supreme Court acting through its chief justice who was Ronald Castillo at the time was basically like a uh. Homeowner or client building a

02:38:40.139 - 02:38:58.280

building um in in dealing with with the developer and that was to move the family court to this new facility. Yes, the family court was in terrible facility and they were building this new building at uh 16th and March essentially, um. After the case was filed.

02:38:58.929 - 02:39:19.429

Um The Supreme Court went for a quick knockout. They filed a motion to dismiss, um, and I can't remember exactly the reasons why, but I know that part of it had to do with an argument that the architectural plans for the new building, um, belonged either

02:39:19.709 - 02:39:42.889

to the, the Supreme Court. Or the architect but not to the developer, um, and I had to analyze that and I had to write a decision painstakingly analyzing the provisions of this relatively form and commonly used architect client agreement um I remember a friend of mine

02:39:42.889 - 02:40:00.620

who was a. I was a landscape architect in Maryland told me that she actually heard about my case of all things because uh architects were all interested in it um but I analyzed it in a way that caused me to deny them deny the motion in

02:40:00.620 - 02:40:20.179

the case. There, there were other issues. About the fallout between the developer and the Supreme Court and Again, I can't remember exactly why, but I knew there was some factual dispute that if it was went to a hearing would have necessitated the debtor calling Chief Justice

02:40:20.179 - 02:40:33.580

Castile as a witness, and he wasn't, and I think it I think it would have been legitimate because I think he was acting in an administrative capacity in his dealings with the developer, um, I think once the case got that far, that's what led to the

02:40:33.580 - 02:40:56.500

settlement that would be my, my guess, but they settled and uh. This building was built. It's in so you confirmed it, I, I think so. I think we did, and, and you were, you were, um, in practice, um, when, uh. The judgeships, um, uh, the nature

02:40:56.500 - 02:41:12.089

of the judge of bankruptcy judgeships created the first constitutional crisis in Northern pipeline, and you were a judge, uh, when the same thing happened again or a similar thing happened in Stern versus Marshall, um, did Stern versus Marshall affect the cases in front of you? A

02:41:12.389 - 02:41:33.610

bit, but maybe not as much as, as you might think. I mean, generally. Except in Expensive high profile cases. Bankruptcy attorneys that appeared before me at least. did not spend a lot of time worrying about bankruptcy jurisdiction. Rarely did an attorney raise. A jurisdictional issue in

02:41:33.610 - 02:41:50.290

a case. If anything, I was the one raising them because I had an obligation to raise it sua sponte. Um, now in some ways I thought that was a compliment. I think that most judges that came into the bankruptcy court considered bankruptcy judges, federal judges, no

02:41:50.290 - 02:42:16.080

different than the Article 3 judges, even though we are not. We have limitations on what we're allowed to decide. Um Well, that said, After Stern, there was a lot of concern in In the bankruptcy world and even in the judiciary about the ramifications of Stern if

02:42:16.080 - 02:42:34.110

you took it aggressively to its limit on both bankruptcy court and magistrate court practice, but fortunately the Supreme Court in the wellness case put those concerns to rest and everything's been was pretty smooth after that and that was by deciding that parties can consent to having

02:42:34.110 - 02:42:47.584

the final order entered. The bankruptcy judge, even though the bankruptcy judge doesn't have lifetime tenure, yeah, yeah. Did you end up certifying a lot of cases on the proposed findings of fact and conclusions of law up to the district court at that time or after? Very

02:42:47.584 - 02:43:03.500

few because most parties consented either in the pleadings and, and, and probably for a couple of reasons. One is. They were comfortable with the bankruptcy. So a lot of times it was, uh, two sets of bankruptcy lawyers. They, they were in their home courts. They didn't

02:43:03.500 - 02:43:21.379

care. And the other is expense and time I imagine time and expense, sure, yeah. Um, do you think that the perception of the, uh, the bankruptcy practice and field by other members of the legal community has changed since you began practicing law? And I'm asking pretty

02:43:21.379 - 02:43:41.059

generally, yeah, I think so. I mean, I don't have too much of a sense, say. In the first couple of years. After the code was enacted, how Bankruptcy lawyers were perceived as compared to how they were perceived under the act because I didn't have much of

02:43:41.059 - 02:44:04.500

a basis for comparison, but after those 86 tax amendments and And bankruptcy filings started to skyrocket and uh Law firms realized there was a lot of money to be made in bankruptcy practice. I think it, it became a mainstream practice at that point. Um, do you,

02:44:04.509 - 02:44:28.900

um, have any thoughts about the role of bankruptcy law in the larger US economy? Yes, I think bankruptcy does two things. First, I think it's It's inherently part of our safety, uh. Safety social safety net, uh. I mean this is obviously true for individual debtors who

02:44:29.349 - 02:44:46.709

can get a fresh start, um, but I think it's also true to some extent in the business side because they function to keep businesses going, um, people employed, and now even more so I think to the extent subchapter 5 of Title 11 is, is keeping more

02:44:46.709 - 02:45:02.549

small businesses afloat. I mean, I, I, I. Sat for about the 1st 2 years I guess of subchapter 5 and I and I saw enough of it to get a feel for how I think it was gonna work and I think it was gonna save some,

02:45:02.919 - 02:45:21.400

some businesses that otherwise would not have been, would not have been saved. Um, the second thing is, and I used to tell my clients this to the extent they, they wanted to think abstractly about their situation, um. That bankruptcy is really just recycling. It allows for

02:45:21.400 - 02:45:40.190

the recycling of the means of production, they failed business and its assets and Put them in a place where they can be used again to be productive, but it also recycles human resources because it gives people the incentive to produce and work hard because they get

02:45:40.190 - 02:46:00.080

a fresh start, um. I always like to I always used to tell people that any interest in history that I don't think it's a coincidence that we finally had our first permanent bankruptcy law in 1898 because that's when the American West closed and the country was

02:46:00.080 - 02:46:17.129

sort of aware that the frontier had finally ended so when. When you Fell into debt, you didn't go, couldn't go west anymore to avoid your creditors, so you needed another system to deal with insolvency. So bankruptcy had to come to the fore. You have to have

02:46:17.129 - 02:46:38.650

a safety valve. Uh, do you have any advice for a, a new bankruptcy judge? I would probably tell him the same thing. Bruce Fox told me when I started. And the judge's primarily, primary role is to make sure that disputes are resolved peaceably. People don't beat

02:46:38.650 - 02:46:55.389

each other up and shoot each other. Um, so it's less important that you get the ruling right or wrong, or whether the appellate court even agrees with you. The most important thing you do is to make the parties feel That the process was fair, that they

02:46:55.389 - 02:47:10.190

had their day in court and you have to inspire confidence in them that you're impartial, that you are listening to them, understanding their arguments, and that you are doing your best to figure out the right result by applying. I used to tell that to people. I

02:47:10.190 - 02:47:26.540

said, look, at the end of a trial, I, I would say, all right, thank you, everybody did a great job usually was true but um um. I, I'm gonna take it under advisement. I don't, I don't know yet what I'm going to do. I have to

02:47:26.540 - 02:47:42.160

really think about all the arguments everybody's raising, and only I can promise you is I will do my best to, to try to figure out what the best answer is here as to who should get what, um. And that's your, I think that's their job. The

02:47:42.160 - 02:48:03.120

rest of it is, uh, on, on the edges. Um, it's always a difficult question, uh, to ask and to answer, but what do you consider to be among your, uh, greatest professional accomplishments? I think there's probably 3 things. First, maybe foremost was my work on the

02:48:03.120 - 02:48:21.719

advisory committee rather than my work as a judge of the rules advisory committee on after BAPSIA was enacted, there was a tremendous amount of uncertainty and apprehension about the future of bankruptcy practice, particularly in the consumer area before BAPSEPA took effect, we had to create a

02:48:21.719 - 02:48:42.280

whole new template for consumer bankruptcy practice. And along with the other members of the committee, I think we did a very good job of uh creating a, a smooth transition into this next what was becoming the next era of bankruptcy in the United States. Second, Um,

02:48:42.400 - 02:48:57.929

as a judge, I'm proud that I think I continued to tradition I refer to that I think Bruce Fox. It's largely, but not of course entirely responsible for other judges as well contributed to this uh setting a tone in the courtroom in which the bar and

02:48:57.929 - 02:49:17.110

other courts in our district recognized that the bankruptcy court is a serious capable federal federal court. Um, the third thing is, I wrote a lot of opinions as a judge. I was sometimes, uh, mocked a bit for it and mocked about the length, um. And in

02:49:17.110 - 02:49:32.219

doing so, I don't know that I broke a lot of new ground in bankruptcy doctrine. I may have added a little bit to the case law in student loan cases a bit, and I know I developed my the only thing I think I did that was

02:49:32.669 - 02:49:51.629

totally my own in terms of creativity was a methodology that I came up with for analyzing collateral estoppel issues in dischargeability cases which um comes up awful lot. Um, and at least a couple of judges have, have noticed what I, what I wrote, um. But I

02:49:51.629 - 02:50:06.940

have the feeling and I'm proud that that through my written opinions, the parties were able to see what I talked about earlier uh in terms of the advice I give, I would give a new judge that they saw that I had a thought process before I

02:50:06.940 - 02:50:21.339

ruled for or against them, that I considered their arguments and they had a they had a fair hearing. They had, they had their fair day in court. I'm proud of that as well. And uh you were retired um from the bankruptcy bench and from practice. You

02:50:21.339 - 02:50:37.950

didn't go back to practice in 2023, I think. What did you do next? I have a boring answer. I get asked this a lot and and I say it's boring, nothing special, I think, uh. You know, when you're working, you have some free time, various interests,

02:50:37.990 - 02:50:54.209

and what I found is I just expanded the time I could spend on, on those things, whatever, you know, typical kinds of things, reading, movies, TV, dining out. Taking care of my dog, you know, nothing special. I hope the dog appreciates it. I think the dog

02:50:54.209 - 02:51:10.940

does appreciate it good. How do you spend your days now? Again, it's pretty boring like a lot of, uh, my now retired friends, I read the newspaper and try to solve various New York Times puzzles. And prepare how quickly I, I do it with my friends,

02:51:11.089 - 02:51:24.389

you know, that's a big profit center for them, believe it or not, the puzzles, yeah, yeah, I'm not surprised. People love them and, and over time I keep getting hooked into more of them, but I, I put a limit on it at this point. I play

02:51:24.389 - 02:51:40.959

some internet chess, um, again, I spend time with my dog. I play, I get to play more golf and I have a nice opportunity. I walked 9 holes a couple times a week. I, I'm doing a lot more reading and it's all fiction. Um, a little

02:51:40.959 - 02:51:58.570

embarrassed by that because I was a Professional, I should be keeping up on nonfiction subjects, but I'm not. Um, I still do a little bit of writing for Collier as a contributing author. I socialize, have lunch with my friends and I do more cooking, watch some

02:51:58.570 - 02:52:12.309

TV. It's, it's very pleasant. It's almost I sort of pinch myself. I said, What have I done to deserve this? This is so easy. Well, it sounds like, um, you are enjoying it, and I'm pleased to hear it, and, um, I wanna thank you very much

02:52:12.309 - 02:52:19.440

for taking the time to talk with me today. Thank you for. Caring enough to uh it's been a great conversation. Thank you very much. Thank you.