00:00:03.589 - 00:00:32.970

Yeah. OK, this is Bill Thurman. I'm a judge, bankruptcy judge in Salt Lake City. And today is July 14, 2025, and I've been asked to, and volunteered actually to conduct a video interview with my good friend, Judge for retired Judge Tom Bennett. Tom is

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somewhere back east in Kentucky at the present time, and I'm sitting in Salt Lake City. So, we'll proceed and hopefully this comes through very well. Tom, as I mentioned, we're trying to, put together a history of interviews so that, it's a

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part of our legacy that we'll leave for the future. I'm sure everybody will want to look at your interview, and, learn from you and learn how they can be a better person. We're gonna put all these together for our 100-year anniversary in San Diego

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next year. It's hard to believe that the NCBJ has been around 100 years. That is, that's strange. Well, I'm gonna do some background on you, Tom, and then we'll get into what you did then in Alabama and what you're doing now. What, when were you

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born and when? I was born in Philadelphia, Pennsylvania on the Epiphany of 1949. That's January 6th. Wow, you're just a young guy. Uh, I was born in 1947, so I got two years on you. So why am I still working? Jeez. Tell me a bit,

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a little bit about your growing up years in, in Philadelphia. Tell me about your parents and your family background. My father is, was from Water Valley, Mississippi, which is near Oxford. And he went to Wabash College, graduated from Wabash when he was

00:02:14.660 - 00:02:33.839

18. Won the Ben Hurst scholarship. Financed by Lew Wallace, who wrote Ben-Hur and went to the University of Athens. got an inner ear infection, went to the University of Munich, took an anatomy course, liked it so much. He got his medical degree at the

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University of Munich and his postdoctoral degree from Louin. And then he taught at a number of medical schools and ultimately was Dean of Jefferson Medical College. My mother was from Fairmont, West Virginia, and did some work early in her life but was mostly

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in charge of taking care of myself and my 3 brothers. Well, I bet that would be an interesting job for anybody if they're all they're anything like you. That'd be a real task, but I bet it was. I. Go ahead. I was gonna say you asked

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about, you know, I grew up outside Philadelphia in a place called Penn Valley, and then Valley Kenwood. You know, I went to public schools until 4th grade cause my father died when I was in 4th grade. Then I went to a school

00:03:36.679 - 00:03:58.949

called Girard College located in Philadelphia. That was established in 1848 by the person at that time who was the wealthiest American in the United States, Stephen Girard, and he left his fortune, most of it to the school. He's probably known for a lot of

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things, but, the other that he's known for is he was the one that, principally funded the financing for the War of 1812 for the United States. Oh wow, that's going back. Well, that's going back a way. Well, good for him. I'm glad he did.

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Well, did you go to high school or, primary schools in Philly? Yeah, the Girard College goes in my day went from pre-elementary all the way through high school and actually, actually at one point had a year or two years of college. Terrific. Did you have good

00:04:40.899 - 00:04:56.940

experiences and all that. Yeah, I mean, it was a tough school, don't get me wrong. I mean, I went from, I've lived, I've had two backgrounds, I guess when I grew up, one in a relatively privileged background, and then after my father died, it was the

00:04:56.940 - 00:05:12.920

other side of the tracks. I mean it was a tough school in my day, you would see people having fights that their teeth would fly out of their mouth, so it was not, it was a tough place to go to. Did you get any, did

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you get any fights in high school? Pardon me. Did you get into any fights yourself in high school? No. My word. I think I got into one or two bad days. What was your favorite subjects while you're in school? In high school, yeah, it

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really varied by the teacher. Probably my favorite, it was in my senior year when I had a, English teacher, by the name of Pat Brown, and he was the only English teacher I ever had that made English, uh, enjoyable. The rest, I

00:06:00.489 - 00:06:23.380

thought a different, story. He ultimately became, I think, a professor at the University of Chicago. Well, who planted the seed of your interest in economics? I've always been interested even as a kid in business type things. And one of the thing, I took

00:06:23.380 - 00:06:42.660

an economics class back in the days when they had core curriculums in colleges and it was mandatory and I liked it, in part because it involved ultimately a lot of math and statistics in addition to just normal verbal things and, and I learned as an

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undergraduate. If you wanted to not spend all your time doing homework, you didn't take English lit, you didn't take, you know, these history classes, the professors get get behind in 6 weeks before final exams, you had 500 pages to go through, whereas math and stat

00:07:02.679 - 00:07:19.070

and economics, you could either do the homework. Or you couldn't. There was no in between and so I could take a math class and the homework would take 20 minutes or take no time at all. And so that's kinda how I got into more of

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the math, stat, and economics. Fascinating. Did you have any goals for yourself when you got graduated from high school? No, I was, I mean I was in, I had my goal was to go to college, all right. But that was kind of the height

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of the Vietnam War in 1970, excuse me, 1966. Um, and so I was also subject to being drafted at that point in time and I was in the first lottery group and had one of those numbers that you didn't know what was gonna happen. I know

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that, I know that drill. I know the drill well. Well, What took you to your college, you went to college at West Virginia, did you not? Among other places, yeah, I started out at La Salle in Philadelphia. Then I went to West Virginia. I

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had a little foray at the University of Michigan, and I did, after I graduated from West Virginia, attended the London School of Economics. What directed you to West Virginia? I'm just intrigued with that. Well, my mother's family was one of the founding families of

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Fairmont, West Virginia, Marion County, West Virginia in the northern part of the state. And my mother passed away when I was a freshman in college and so the residual of my family was in West Virginia at the time. So, did you have to go to work

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and earn your tuition or were, were you on a, uh, a waiver? Well, I got in-state tuition and in those days it was, you know, $150 a semester. And so, and then I had some, additional monies that paid for room and board

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and books, and school wasn't that expensive when I went. OK, well, while you were in school, were there any books or literature that you think had an impact that you can remember right now on your life? The only book that I remember is totally different

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subject but it was called, it was a, a book written by Tristan and Finley on a statistical analysis of speeches by Russian, top Russian government people. And it was kind of fascinating. Because they would analyze statistically words they used and so that

00:10:01.090 - 00:10:23.090

kind of led me more into statistics as time went on that explains some of my Math and stat background. OK. Well, we're, we're gonna come back to another book you quote, we'll get down the road just a bit. I said, so, when you

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finish college, Why did you go to law school? Why did I? Yeah. Well, I was visiting a friend of mine who had graduated from law school. And he went to work for what at the time was the 5th largest company in Texas, United Energy Gas

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Pipeline. And I went to visit him and I got off the elevator on whatever floor it was in the building in Houston, Texas. And there was this whole floor of men sitting at desks with shirts and ties on, but they were just desks. And he

00:11:01.359 - 00:11:16.760

took me back to his private office where he had, you know, all sorts of office furniture and everything else. And I said to him, I said, uh, I said, Bill, who are those, those guys out there? He said, oh, those are our economists. Of the economists,

00:11:16.940 - 00:11:36.219

they were all economists, and, and I quickly decided, you know, there was a difference between the treatment of lawyers, which my friend was, and the economists. Were they all like in dark suits and black ties, solid black ties? Nope, they were just shirts and ties. That's

00:11:36.219 - 00:11:57.510

all. What an impression that would have been. Well, through, through all this process, Sean, did you have any jobs outside of school that might have had an import and, and you, you considered important in your life? Well, when I was in high school, during the summers,

00:11:57.590 - 00:12:21.989

I worked for a law firm at the time known as Dilworth, Paxson, Kalish, Cone and Levy. And it was a pretty prominent firm in Philadelphia. Today it's known as Dilworth-Paxson. The former mayor of Philadelphia was one of the partners, Richardson Dilworth. Dolores Sloviter,

00:12:22.000 - 00:12:40.669

who was unmarried at the time that went on to be on the 3rd Circuit was there. Harold Kohn, one of the top antitrust attorneys for a long time, was there. And a guy by the name of William T. Coleman, who was the first black law clerk

00:12:40.669 - 00:12:57.400

to a Supreme Court Justice Frankfurter, was there. He went on to become Secretary of Transportation. And so I, you know, there were a lot of people that were pretty prominent there when I was in high school working for them during the summer. Oh, how, how did

00:12:57.400 - 00:13:17.979

you get on there? I knew one of the other partners, C. Leo Sutton. Well, that's a good way to do it. That's a good way to do it, um. And your, your college degree, before I get back to law school, your college degree

00:13:17.979 - 00:13:39.830

was in what? Economics? My undergraduate was economics, my graduate degree was economics. And I was past my master's and was gonna get a PhD, but I then walked through the United Gas Pipeline headquarters in Houston and saw all those economists and changed track

00:13:40.130 - 00:14:02.159

and went to law school. Well, besides law, were you considering any other pursuit following graduation, undergraduate? Once I decided not to be an economist, full-time, it was only law. OK. Well, that's better than some of our colleagues. We didn't know what we were doing.

00:14:02.280 - 00:14:22.599

We just sort of ended up where we, where we did. What was your experience and, and, and, and feel like when you're caught caught with your lot of education in West Virginia? I'm, I'm sorry, I didn't catch part of that. OK, yeah, I

00:14:22.599 - 00:14:45.489

kind of garbled that up. How did you feel about your education at West Virginia for your law degree? I thought that it was a, a great law school. They, at the time, the, the, the then Dean recognized he couldn't compete for

00:14:45.489 - 00:15:05.429

top talent that already existed. And so he went out to hire people that prospectively may be top talent. And for instance, one of my professors was a guy named Fred Shower. He's still, still is around. But he taught at Michigan, then he went to

00:15:05.429 - 00:15:23.989

Harvard and he was academic dean of the Kennedy School. He's now at the University of Virginia, but he is relatively well known for, legal positivism. And so those were the type of people that were being hired. Knowing that they'd only, when I was at,

00:15:24.099 - 00:15:41.330

at West Virginia Law School, knowing they'd only be there for a few years and move on, but you got the benefit of those type of people, at, at during my tenure. That's significant. Professors can have a real major impact on the students that come

00:15:41.330 - 00:16:01.640

through their doors, and I had a couple myself that I'm very grateful for. One of them is still around, and I see him on occasion, and it's a, it's a good experience. Were you on any academic boards or publishing entities while in law school?

00:16:03.489 - 00:16:26.330

Well, I was actually on the law review, but it was, but I was teaching on the economics faculty, undergraduate micro and macroeconomics. And it interfered with when the then editor of the Law Review had his weekly meetings. And he very publicly told me I'd either have

00:16:26.330 - 00:16:45.460

to quit my teaching duties or he'd get me off, he'd kick me off the law review and I told him bluntly, I said, well, you can keep your law review. And so my law review tenure was cut short. So, OK. OK. Well, I understand. So

00:16:45.460 - 00:17:05.180

following law school, you hooked up with the, the 5th Circuit, and went to clerk there, didn't you? Or was that later? No, I. There was a short period when I was at Squire Sanders and Dempsey in Cleveland, just between law school and when

00:17:05.180 - 00:17:21.909

I started the clerkship, with the understanding I'd go back to Squire Sanders after my clerkship, but, other than that short period, I essentially went to clerk for John Brown, who at the time was the chief judge of the old Fifth Circuit. That was what,

00:17:21.918 - 00:17:44.910

6, 76, 1977 thereabouts? 76 to 1977, yes. Yeah, OK. Um, how did you and, uh, what was your perception of your clerkship? What made it good or bad or ugly? Well, it was good to the, to the extent that, you know, I worked for a

00:17:44.910 - 00:18:08.219

judge that was very brilliant. And we had a lot of very interesting cases. And I guess it was also good because it taught me that Court of Appeals judges, are isolated from the bar to a great extent. Whereas trial-level judges are not

00:18:08.219 - 00:18:26.670

to the same degree. Negative part is you, you got to write all day. Mm, yeah, stuck in the back room. Put paper under the, under the door and let you turn out the gold, is that right? Yeah, well, yeah, in some respects. That's what I

00:18:26.670 - 00:18:45.219

tell my clerk. He's here with us today. What, what is it? Um, No, I can't remember the, the, the fairy story. Um, so how long were you there? 2 years with Judge Brown? No, they were only one-year clerkships on the Court of Appeals at that time,

00:18:45.420 - 00:19:09.400

OK, OK. And how did you perceive that it helped you or not helped you in your next step in your career? I don't know that I perceived that it helped or hurt me at that point in time. I think the major help Other

00:19:09.400 - 00:19:33.219

than the fact that I had the clerkship, was the, the way that Judge Brown would have you write opinions and he was big on captions and catchy captions, and, trying to make the opinions more than just the normal dull legal writing. OK, well,

00:19:33.550 - 00:19:52.050

and I served you well. We can see that in your writing, subsequently. Were there any other mentors that you can think of prior to, going into, well, I guess prior to and during your practice of law after you came out of Judge Brown? Well,

00:19:52.170 - 00:20:11.050

Judge Brown was one. John Copenhaver was another who was, who is still a district court judge in 96 and 98. He had been a bankruptcy referee. He was the president of the NCBJ for a couple of months before he was made a district court

00:20:11.050 - 00:20:34.599

judge. And he was in charge of the first bankruptcy case I ever worked on, which was a multi-state industrial savings and loan under the old Bankruptcy Act, uh, and, uh, It got to be in bankruptcy because it was uninsured. And so that was

00:20:34.599 - 00:20:56.640

my, actually my first foray in anything related to bankruptcy. Um And then on the practice side, probably 2 people for Different reasons. A guy named Ed Rugeley, who is ninety-something now, but he taught me a lesson in a deposition. He was a, evengoing sort

00:20:56.640 - 00:21:17.000

of guy, a calm, mild mannered guy, and the other person doing the deposition was the old fashioned, you know, hell and brimstone type of depo deposer, and he didn't, the, the other guy that was the hell and brimstone, John Haight, didn't get what he wanted out

00:21:17.000 - 00:21:37.030

of the witness. Ed Rougeley was calm, courteous, and respectful. Very quietly asked questions and got everything he wanted. And Ed at the time was a partner of Jackson Kelly, in Charleston. the other person is a guy named Robert Kennedy, but it's not

00:21:37.030 - 00:21:56.420

the Robert Kennedy that most people are thinking about. I called him Bob Kennedy. He was a partner at Squire Sanders, a litigation partner that was, One of the first professors hired for the Florida State Law School back in '74, 75 range. But

00:21:56.420 - 00:22:18.729

Bob taught me a lot about um how you should appear for trials and, and for instance, things you don't use unless you absolutely know, such as we had a handwriting expert that would have testified. That the document in question in the case we

00:22:18.729 - 00:22:37.739

were trying was forged, but We didn't use it and I asked Bob Kennedy why and he said, well, he had too many ways to slip out from underneath it, and so I didn't wanna use it. What a blessing it is to have mentors that can

00:22:37.739 - 00:22:55.339

help shape our careers. I've had several early years myself, so I can identify with that. Well, then, you spent a little bit of time with the Attorney General's office in West Virginia, didn't you? Well, I wasn't in the Attorney General's office. I did. I represented

00:22:55.750 - 00:23:15.989

the West Virginia Civil Service Commission, when, and, and I would have special appointments when the Attorney attorney, Attorney General's office had a conflict with other state agencies that it represented. And so I did that for a number of years and I got to do that because

00:23:15.989 - 00:23:38.189

I represented a bank and the bank president.That was on the Civil Service commission board, so. Did that have any overlap into bankruptcy matters. No, it was pure civil service matters. I, I, you know, in my practice, it was, my practice was

00:23:38.189 - 00:23:58.670

not exclusively bankruptcy. I did a lot of, a lot of commercial, and commercial-related litigation in addition to bankruptcy work. Well, what steered you into bankruptcy matters? It was the first case I worked on with John Copenhaver, not with him, he was the

00:23:58.670 - 00:24:22.209

judge on the case at the time. And it was an orderly liquidation under an old, Chapter 11 that had a receiver, and, it took About 10 years to liquidate all of the industrial savings and loan banks throughout the country. And see,

00:24:22.250 - 00:24:44.699

that's the That's, that's the test of a good lawyer stretching those cases out as long as you can, so he must have been a great lawyer. Just joking. When you were doing that special counsel bit, were there any particular cases that stuck

00:24:44.699 - 00:25:04.339

in your mind that you can remember that helped shape your career? Yeah, I had a case where the governor wanted to give a, a one-time pay raise to state employees in a lump sum, and, and he was Republican, and at the time, the auditor

00:25:04.339 - 00:25:28.339

was a Democrat. Glenn Gaynor, and he wanted to parcel it out over 26 pay periods. And because the pay period in question was coming up in, in a couple of weeks, um, I talked it over and did something that Didn't necessarily think it

00:25:28.339 - 00:25:46.910

would win, but I went straight to the West Virginia Supreme Court to get a ruling on the matter without going through the trial level courts. Did you, did you argue with the Supreme Court? It was done on briefing that one, OK, and,

00:25:46.920 - 00:26:05.180

long and the short, there really wasn't any jurisdiction to go straight to the Supreme Court, but they took it and ruled in my client's favor anyway. Fantastic, fantastic. All this has helped shaping you and, and shaving off the rough edges on you, Tom, I can tell,

00:26:05.599 - 00:26:24.729

to shape you into the judge you became. Well, tell me about the appointment process for your position in Birmingham. What did you have to go through and oh, why, why did you apply to that Northern District of Alabama? Well, Let me start off with the process.

00:26:24.810 - 00:26:44.310

Because friends of mine were in the positions in West Virginia, the two that existed. I wasn't gonna try to run against them, and I wasn't dumb enough to think that they wouldn't get reappointed. So I had to look at other circuits, other,

00:26:44.930 - 00:27:03.609

other states I should say probably. And I contacted the Fourth Circuit and asked them if they would just send me flyers to the circuit executive when they had openings and the circuit executive in 1974 or 75 said no. So I realized I'd have to go

00:27:03.609 - 00:27:26.930

to other circuits and I analyzed other circuits to see which ones were actually hiring people from out of the circuit or out of the jurisdiction and carpetbaggers, carpetbaggers, yeah, true, in some respects, and to be honest, the, 11th Circuit was, and actually I

00:27:26.930 - 00:27:48.119

haven't told many people this, but I was a finalist in 1974. And at the at the interview with the full circuit. They really, they had somebody they wanted to, to, to go to what was the Orlando position. They asked me if I'd go to Miami

00:27:48.119 - 00:28:04.239

or Jacksonville and I said I won't go to Miami and I said Jacksonville, uh, I've never been to and I can't tell you today I'll go there, which was the kiss of death, and as they say, but the long and the short is

00:28:05.189 - 00:28:21.859

Judge Tjoflat, I'm certain. Made certain that their circuit executives sent me a flyer for every open position in the 11th Circuit. After that, and after a couple of years, I said, you know, I probably ought to apply for one of these. And there was one

00:28:21.859 - 00:28:40.650

in Tuscaloosa and one in Birmingham and so I applied and kind of the rest is history. Wow, that's, that's interesting. You know, I think I applied for the same job a couple of times here in Utah and I never got it until later on

00:28:40.650 - 00:29:03.329

in life, which was good, which was good. Why did you want to be a judge? Well, it was because of the bankruptcy that I liked. The only way I was gonna be able to spend mostly full-time on bankruptcy was either to move firm-wise, and

00:29:03.329 - 00:29:24.449

I wasn't interested in doing that, because at the time I had I was probably the 2nd or 3rd. highest person in my firm and I really didn't want to start over again. And then I wanted to have more specialization in bankruptcy and

00:29:24.449 - 00:29:49.140

so the other route was to try bankruptcy judgeship and it worked out. Wow, that, that, that's, that's fascinating as well. So, um, when, when was that you were appointed down in Birmingham? It was June 5th of 1995. 95. And you served how long?

00:29:50.739 - 00:30:12.319

About a month over 20 years until until July of 2015. Good service, good service. And I thought by luck, well, I think you told me one time that there was kind of a unique situation for your appointment or to draw the case of the Jefferson County

00:30:13.839 - 00:30:40.290

municipal bankruptcy. How did that process play out? It, I was chief judge at the time and before I was chief judge, it was in the news that Jefferson County would probably file bankruptcy. It was delayed for a year or two, but There were

00:30:40.290 - 00:31:01.099

two 11th Circuit judges that told me actually in advance that if they filed, they were gonna make certain that the case was allocated to me. And so the, I suppose I was, other than those two, I was the only one that knew

00:31:01.349 - 00:31:17.920

how that was gonna be allocated. OK, well, what a good selection the circuit made or, or whatever the protocols was to get you into that position. You know, Tom, I read an article one time and I, I, I quoted it to you and you didn't deny

00:31:17.920 - 00:31:37.579

it, that somebody wrote the article and said that you were the smartest man in the room. Do you remember that? I don't remember the article. I remember you quoting it to me, and I disagreed that that's the case. I think it was spot on. And

00:31:37.579 - 00:31:57.489

you served as chief there in Birmingham from 2011 to 2015, is that right? Well, I retired in, oh yeah, I'm retired. Oh, OK. What the, I mean that, would you, would you call the, the Jefferson County one of the most significant cases you

00:31:57.489 - 00:32:15.099

worked on during your tenure on the bench, or were there some others? Well, it was one of the most significant ones I worked on, if for no other reason, and is that a lot of the, the issues I had to deal with had never been

00:32:15.099 - 00:32:42.709

decided, under the bankruptcy code. Another one I had was in re Perry County Foods. It involved the brother of the, of the then president of the United States, Bush and his then brother-in-law, where there was a dispute over claims that they had

00:32:42.709 - 00:33:09.239

essentially Bankrupted the company by going through multiple reorganizations or restructurings, outside of bankruptcy, and it was a deepening insolvency case and I used microeconomic theory to exclude expert accounting testimony even though none of the parties argued it. And so there is

00:33:09.239 - 00:33:28.520

in there a discussion of the economic theory and why the fact that you lose money and continue to lose money does not mean you should shut a business down. There are points where you should shut it down, but there are other points where the loss

00:33:28.520 - 00:33:47.050

minimization is by continuing to run the company. And eventually that's what happened. You let it continue. Did you ever, I can't, I, I've never dealt with a, a Chapter 9 before. Is there a mechanism in there to appoint a trustee or a supervisor over the case?

00:33:48.670 - 00:34:07.229

No, you can't. I mean, over the case, no, you can't have a trustee for a municipal land under Chapter 9. And, what was the other, not the trustee, but what was the other, an examiner some sort of special administrator or the or the like.

00:34:08.060 - 00:34:32.829

Well, no, I mean constitutionally, one of the, the problems you have to pay attention to is the limitations under the Constitution on the ability to control governmental entities such as states or municipalities. I got you. Were there any shakeups of management once they

00:34:32.829 - 00:34:51.439

went into the chapter 9? Oh yeah, and there were about 20 people that went to the federal penitentiary. They were running the, the, the sewer system, which is what caused the bankruptcy. Was that because of referrals you made or other people catching wind of what

00:34:51.439 - 00:35:11.530

needed to be done? It was nothing that I referred. It was, it started before I, the case was ever filed and, You know, the, the problem in a lot of municipal. The utilities is they're politically controlled and they don't want to raise rates

00:35:12.030 - 00:35:27.629

to take care of maintenance and upkeep. And so after 30 or 40 or 50 years, you can get away with it on a sewer system, but it all collapses eventually, and then you have significant rate increases for people that weren't even around at the time

00:35:27.629 - 00:35:50.500

the work should have been done, so. Oh, interesting. Now, you're recognized as one of the leading authorities in municipal bankruptcies, and I, were there any significant Chapter 9s prior to the Jefferson County case that you could, you could lean on to help you in your case?

00:35:52.750 - 00:36:15.010

There were some chapter nines. I don't know in, in terms of size that they were that, that significant, but, you know, Detroit followed on a couple of years. A 1.5, 2 years after Jefferson County, but there were, the fact that they weren't

00:36:15.469 - 00:36:37.610

large cases didn't mean that I didn't get some information, some insight into some issues. Chris Klein had a case out in California that he had written some some opinions on, for instance, and so there were some cases to look at on some issues. But

00:36:37.610 - 00:36:56.729

you were plowing pretty much new ground, weren't you? On a lot of issues, yes. Smartest man in the room to figure it out. Now there was an attorney, what was his name? Ken Klee didn't he represent a group of creditors, in that case? No,

00:36:56.929 - 00:37:22.739

Ken, and his firm represented Jefferson County, along with, along with John Whittington at Bradley Arant, and, oh gee, Young guy at the time, he's now general counsel to what used to be, South something that changed the name.

00:37:23.229 - 00:37:44.360

Anyway, but, no, I, and I got to know, Ken and actually went out to one of his, law school classes at UCLA and gave a talk on, not on bankruptcy though. Well, I quote Ken on occasion, and refer to his

00:37:44.360 - 00:38:00.790

hourly billing rate in your case. Which was just short of 1000 bucks an hour as I recall, and you approved it, but it was hard work. I bet he was stationed there for, that's all, that's all he did. Yeah, he was there for, for a

00:38:00.790 - 00:38:20.909

long time and uh his rate by today's standards is nothing. If you look at what the firms are charging today. The other person that worked intimately on that case was Patrick Darby. Mm. OK. Well, Tom, let's shift a little bit on your philosophy of judicial

00:38:20.909 - 00:38:40.969

philosophy. When you were sitting on the bench, can you give us any tips on how to write a good opinion? I don't know that I wrote any good opinions, but, The, the one thing that I learned from John Brown, Judge Brown was to

00:38:40.969 - 00:39:03.919

use captions and if you can make them interesting types of captions that capture people's attention, it makes the transition from one topic to another much easier, and it also tends to hold people's attention. And, you know, I wrote a dissent for Judge

00:39:03.919 - 00:39:31.080

Brown and a, CFTC Schroeder's patent trademark, intellectual property on what were flowers. And I call it the yellow rose of Texas dissent because he went through and inserted these captions that were some of the history of the yellow Rose of Texas.

00:39:33.500 - 00:39:55.139

How would you describe your own analytical approach to handling the case? Well, let me give you my philosophy. My philosophy is that, you know, it's a judge's duty as best the judge can do to, follow the law. And it is not a judge's

00:39:55.139 - 00:40:17.850

duty to impose their personal, political, philosophical views on top of what the law is designed and in bankruptcy law, the statute itself is liberal in the sense that it is designed to be pro-debtor, in many respects. And so my view was that my

00:40:17.850 - 00:40:41.840

job was to interpret the law, without imposing. My particular philosophical, political, or other beliefs on top of what the law, is required as best you can, understanding that, you know, people have backgrounds and they still influence them. And so, and your question

00:40:41.840 - 00:41:05.310

was, I think on writing opinions, what I would suggest. And analyzing, I, I have this belief in, in when I went out to UCLA to talk to Ken Klee's class about was that lawyers operate in a world of words. And despite one of my

00:41:05.310 - 00:41:34.790

favorite author's position that words are eloquently exact, they're not. They are very fungible, and that's why you have a lot of lawyers that play with words to get to an outcome. Whereas, in the quantitative methods science, it's math-based and so what

00:41:34.790 - 00:41:58.760

you have is they develop outlines, backgrounds of issues they're dealing with where you have a high degree of, of certainty that the model you're using will work and hopefully, 95, 98, 99% of the time. With words, it's different. And so in the legal profession,

00:42:00.959 - 00:42:24.510

What we do is once a certain level of court makes a ruling, that becomes the, the, the opinion that governs all other cases, unless one can distinguish it. And so what you have in, in legal business is a development of a legal principle using

00:42:24.510 - 00:42:47.229

one case and one fact pattern that then governs all other permutations unless they can be distinguished, which is the perverse of what scientific method is. And so what I try to tell people is You ought to take some math beyond high school, so you understand the

00:42:47.229 - 00:43:07.909

limitations on verbal analysis and don't try to do these extraordinarily broad applications of a legal principle on one fact pattern that governs all others. And it, and the reason is if you look at antitrust law, the, the Supreme Court had it wrong for decades, half a

00:43:07.909 - 00:43:26.219

century. It took to get them corrected. And so, you know, when I look at an opinion, I try to look at it. To try to focus on what the issue is, limit the scope of the analysis and how it would apply elsewhere, so that

00:43:26.219 - 00:43:42.669

it's not one of these grandiose rulings that can be applied across the boards. Mm. So my dicta that I issued the other day, you'd probably not agree with. No, I, I don't know what the dicta is, but, if it was written by you, I would

00:43:42.669 - 00:44:02.090

agree with it. Oh yeah, for sure. Hey, now there was a quote I found about you. It was written by Seth Muse. It's a judicial profile. There's an article in the Federal Bar Association Journal. In the judicial profile series, and you're probably aware of it,

00:44:02.419 - 00:44:27.520

but he says one thing here that I thought was interesting. The judge's love of reading often surfaces in his opinions. For example, in his highly anticipated holding whether Jefferson County was eligible for Chapter 9, Bennett began his opinion by references to Amasa Coleman Lee, the father

00:44:27.520 - 00:44:49.139

of Harper Lee, and the fame for, the quote from Atticus Finch in To Kill a Mockingbird. Now you've why did you find that so compelling to quote them. The reason is really simple. The fight was whether the Alabama statute authorized Jefferson County to

00:44:49.139 - 00:45:10.989

file bankruptcy because the argument was they had to have certain types of debt. And So this took a lot of research and I actually sent one of my law clerks to Montgomery, Alabama to go through some historical documents and because I already knew that one of

00:45:10.989 - 00:45:34.370

the principal drafters of the statute was Harper Lee's father. All right, and that's what it was. Harper Lee's father was one of two of the principal drafters of the statute. Fantastic. I'll have to embed that into my current law clerk so he can do, do some digging

00:45:34.370 - 00:46:04.699

on these people we're working on. Tom You served the Association of Judges, the National Conference of Bankruptcy Judges. You were actually the president on their national board. What drew you to want to serve on that entity? I became a member of the NCBJ

00:46:04.790 - 00:46:27.590

National Conference of Bankruptcy Judges, Within a few days of my becoming a bankruptcy judge, and I had a couple of friends. One was Ron Pearson in Charleston who urged me to become involved, and Ron was, at that time chair of, the Benefits

00:46:27.590 - 00:46:49.709

Committee, which no longer exists. And it was merged. Well, same difference, I guess, but, and so that's how I got initially involved and then. Another friend of mine was Jim Gregg, who was a judge out of Michigan, and, they both

00:46:49.709 - 00:47:10.659

urged me to get involved. And so I did and then I ran for a, a board position while I was still on the benefits committee. I became chair of the benefits committee when Ron stepped down. Then I was asked if I would work to

00:47:10.659 - 00:47:36.379

try to restructure the business operations of the American Bankruptcy Law Journal. And I was the first, business manager for it, renegotiated a lot of the, royalty agreements with people, that were publishing articles and other, things for the NCBJ. I

00:47:36.379 - 00:47:56.629

should say the ABLJ, and I ultimately, was thinking about running for president, and another good friend of mine was gonna run the year before Iron Man, and I decided not to run in competition with him, and now he's a district court judge in

00:47:56.629 - 00:48:18.620

Cincinnati, Jeff Hopkins. Oh yeah, And so I ultimately did run for the presidency and fortunately was successful. Well, we're all grateful for that. You, you were a great leader for our group. I remember you and I walking the streets of

00:48:18.620 - 00:48:35.000

New Orleans looking for a restaurant, and I think we finally found it, but after much travail, that was, I learned some good things from you. OK, well, with the NCBJ, you know, it, it, it ebbs and flows with, depending on, the people and

00:48:35.000 - 00:48:56.370

the. The, the people on the board, do you have, do you have an opinion of whether or not the NCBJ really helps the judges in their fulfilling their responsibilities? Oh, I think it certainly does. It always has. I think at any given time, the

00:48:56.370 - 00:49:17.229

area that is most helpful to judges will change, but, you know, it's got, historically ethics that it deals with and helps judge on ethics issues. It also helps judge to the extent that they're involved in the NCBJ. And it's, in its business operations

00:49:17.669 - 00:49:42.189

to learn, you know, something about how you actually operate. In this case, I'll call it a business entity. And so it also focuses on legal education, for judges and helps them in that aspect. And It also does the same for non-judges, attorneys,

00:49:42.520 - 00:50:03.709

not just through the law Journal, but it's annual meeting, each year is, you know, a highly respected and always has been program. Were there any particular memorable experiences that you had for the year that you were the president at the annual meeting?

00:50:06.080 - 00:50:25.489

Other than the fact that I got sick and couldn't attend the first few days of the annual meeting, I think I remember that. Yeah, I mean Judy Fitzgerald, who was a judge at the time, and you know her, raised an issue, and that

00:50:25.489 - 00:50:50.610

was that at the time we had, people serving on the executive committee or as officers of the ABI at the same time they were serving on the board or officers of the NCBJ and she thought it should be looked at, and so I

00:50:50.610 - 00:51:11.770

agreed and set up a committee that she was on and, and I've tried to balance the committee out between various parties including people that were active in the ABI, and, The recommendation that came out was that you shouldn't serve on both at

00:51:11.770 - 00:51:33.100

the same time. That was defeated by a membership vote. but, it's something that should have been looked at. It's the membership's decision on whether to go forward with the recommendation or not. I'll tell you though that I was blackballed by the ABI

00:51:33.290 - 00:51:56.060

virtually immediately from that point forward. Yeah, well, I think both of them have their place, and, well, they do, but the, the problem was at the time. Information from our board meeting. and from the executive committee meetings. was getting over to the

00:51:56.060 - 00:52:16.510

ABI. And that's why Judy raised the issue. Yeah, well, Tom, you stepped down from the bench in what, 2015, was that the, the year? Yeah, June of 2015. And then you shifted over to a private practice. Could you tell me a little bit about what

00:52:16.510 - 00:52:39.649

you did then? I went to work for a firm, Bailey Glasser, where I still work, that has a different sort of makeup in its practice. It has a very large high-end, uh, plaintiff's practice. At the same time, it has, a significant commercial

00:52:39.649 - 00:53:06.449

practice, and commercial litigation practice. And, It's different from a traditional law firm in the sense that it's in both areas, and it's about fifty-fifty between high-end plaintiff's work and commercial practice. Did you get involved in any bankruptcy cases while you

00:53:06.449 - 00:53:30.300

were there? Yeah, in a lot of different bankruptcy cases. And a, and a lot of bankruptcy cases to the extent that there was some significant commercial litigation involved in. And so, I mean, I've been involved in Two of the three, Johnson and

00:53:30.300 - 00:53:56.919

Johnson Talc bankruptcy cases, LTL1 and Red River, and been involved in different aspects of different bankruptcy cases. At different times. Well, I'm glad you brought that up about the talc and J and J. You're familiar with the phrase, the Texas two-step. And

00:53:56.929 - 00:54:17.239

in your opinion, has the bankruptcy practice changed over, say, the last 30 years? Well, in the, in the context of the Texas two-step, yes. All right. And let me explain that. The Texas two-step is essentially you go to Texas or a similar state. There are

00:54:17.239 - 00:54:34.379

a couple of other states that have what are called divisive merger statutes, and you can take an existing entity and divide it into multiple other entities. And it's not, it's not deemed a, a division of the company or, or the merger, I should say

00:54:34.379 - 00:54:51.689

of the company into another company. It's, and It used to be when you went into bankruptcy, the good went in with the bad. And that is if the company is going to file bankruptcy. All of its assets and property interests would go in along with

00:54:51.689 - 00:55:18.459

all, all of its debts and obligations and liabilities. The The way of the Texas two-step is being utilized by some Bankruptcy practitioners is. That you strip all of the valuable operating assets through a divisive merger from the entity that's assigned in, in the Johnson

00:55:18.459 - 00:55:47.959

and Johnson case, the liabilities. For the talc claims. And you put the operating assets into an ongoing functioning entity with the operating liabilities, you put minimal assets in the talc liability holding entity, and then you give them, In some aspect, access to

00:55:47.959 - 00:56:09.229

monies from other Johnson and Johnson entities to pay what may be the estimated liabilities of bankruptcy. And so, what it's doing is it's stripping the good parts of a company away from the company before they take the bad parts and put the bad parts in

00:56:09.229 - 00:56:34.389

bankruptcy, which is a significant change historically. And how a bankruptcy works, that when I started bankruptcy. The Debtor's counsel would always say that bankruptcy was value-creating and it saved value for the entities that went in bankruptcy, preserved value. What was interesting in the Johnson and Johnson

00:56:34.389 - 00:56:56.060

talc bankruptcies is the mantra was that we did the divisive merger the way we did because bankruptcy is value destroying. All right, they flipped it on its head from what it used to be. and so, I think the major problem is that in the

00:56:56.060 - 00:57:20.659

bankruptcy context is that on the eve of bankruptcy, they are stripping operational assets and if you think about it, even though there may be some dollar amount allocated to fund potential liabilities, The stripping of the operating assets limits and restricts the reorganization abilities of the entity

00:57:20.659 - 00:57:44.459

that goes into bankruptcy, allowing the other Johnson and Johnson entities to control what happens in the bankruptcy. And it limits the ability of creditors to propose maybe a competing plan of a different sort. And so, in my view, that is a significant detrimental change

00:57:44.600 - 00:58:05.560

in the use of bankruptcy and why the Texas two-step as it's being utilized in these cases is wrong. The, the divisive merger mechanism itself is not bad if it's followed in a way that was intended. And so there is a provision in

00:58:05.560 - 00:58:25.870

the Texas statute, and I'm paraphrasing but it essentially says that when you do the divisive mergers, you can't do it in a fashion that prejudices predators. And so there's a, there's a state law basis to challenge the way it's being done also. Spoken as a

00:58:25.870 - 00:58:51.280

true tort attorney. Well, I mean, I mean, you know, it's really Interesting that, and let me just tell you one of my beliefs, and it's because of my economics background. A lot of bankruptcy attorneys and bankruptcy judges think that bankruptcy is the panacea for financially

00:58:51.280 - 00:59:12.709

troubled institutions. And the answer is, it is not, right? A lot of the bankruptcy cases, particularly if you look at the failure rates in chapter 11. Probably should never have been brought. For the way they were brought. And as an economist, I understand that the

00:59:12.709 - 00:59:32.600

valuable aspects, aspects of a company that's in financial distress will survive and be bought out by other people, even absent of bankruptcy, but it's the bankruptcy practitioners and some bankruptcy judges that think it's a panacea for everything, and it simply is not. Yeah, I've seen that

00:59:32.600 - 00:59:49.560

on a microcosm out here, and people think it's the, the the only thing to do to save the economics. Well, Tom, I think I'll let you go, but do you have any parting words for us? What would you, what would you want

00:59:49.560 - 01:00:09.949

to say to up and coming bankruptcy lawyers? How can they improve themselves? I think that to be a good bankruptcy lawyer, you need a, a background that is not going straight into bankruptcy law and specializing in bankruptcy law. I think you need to have some

01:00:09.949 - 01:00:31.949

litigation experience. I think you have to have a bunch of corporate transactional experience, indenture experience. The old way that the large law firms used to train lawyers was to rotate. For a number of years through many departments, which was my background. Today, they

01:00:31.949 - 01:00:51.310

pretty much pigeonhole people and so if you want an understanding of the dynamics of a bankruptcy case, you need to have a varied practice background over a number of years and not be pigeonholed into the bankruptcy. And I tell, I used to tell my law clerks

01:00:51.310 - 01:01:12.340

and my associates that When you get up against a much larger law firm. The person you're dealing with on a particular problem in bankruptcy probably has dealt with to a much greater extent, some subsection of section 365 of the Bankruptcy Code than you have. So you've

01:01:12.340 - 01:01:32.709

got some research. That you're gonna have to update yourself on or expand yourself on. However, your advantage is that you know the dynamics of the lawsuit involved or the bankruptcy much better than the one that's specialized and the big firms take a room of people, 8,

01:01:32.830 - 01:01:52.080

10,12, 15 people to figure out the dynamics of the case and if they don't get all the right people and they can miss something. Conversely, if you are in a smaller firm. You have some education that you need to, to upscale yourself on, but you have

01:01:52.080 - 01:02:10.350

a better feel for the dynamics of the case. And so I would encourage people to learn more than just bankruptcy law. Wow, well said. That is great advice, Tom. Thank you for taking a minute or two with me today, and like I said, we'll

01:02:10.350 - 01:02:26.669

send you a copy of this and archive it and, save it for future generations so they can learn it. It's been a pleasure, pleasure, and, and I've enjoyed it, and I will, I will come out there and, and buy you lunch. OK, I'll look forward

01:02:26.669 - 01:02:31.560

to that. Thanks, Tom. Thank you. Talk to you later. Bye-bye. Bye.