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Vol 14, Num 3 l August 2016

Technology and Intellectual Property

► In This Issue:

Consumer Privacy Ombudsmen: Benefits and Burdens

ABI

Professor Laura Coordes
Arizona State University Sandra Day O’Connor College of Law;
Tempe, Arizona


The Bankruptcy Code revisions in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 included a requirement that a court appoint a consumer privacy ombudsman (CPO) in some cases involving the sale of personally identifiable information. This requirement has now been in effect for over 10 years, and the time is ripe to assess the CPO’s role in bankruptcy cases.

Background
Two major developments likely drove the creation of the CPO requirement. First, technological advances have made it easier than ever for companies to electronically collect, store and transmit consumer information, such as names, addresses, telephone numbers and credit card information. Second, as bankruptcy has become an increasingly popular vehicle for asset sales, these sales have often included this valuable consumer information, known as personally identifiable information (PII).
» Read More

Fresh Start vs. Fraudulent Intent How Bankruptcy Courts Address Opposing Policy Objectives within the Bankruptcy Code

ABI

William J. Diehl
Georgia State University
College of Law;
Atlanta

Fraudulent-transfer law is a crucial component of debtor/creditor relationships. In the bankruptcy context, fraudulent intent is an essential element for both a trustee’s clawback power through § 548‌(a)‌(1)‌(A) of the Bankruptcy Code and for denial of a discharge through § 727‌(a)‌(2). The language of these statutes directly descends from the Statute of Elizabeth, which was written in 1571.

Despite almost half a millennia of interpretation, the U.S. judicial system is often bewildered when applying the statute to facts. For bankruptcy courts, competing policy objectives within the Bankruptcy Code make this determination even more difficult. The Code protects an individual debtor’s property from liquidation through the application of exemptions but limits the extent that debtors may leverage this protection through fraudulent-transfer law. » Read More

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