Amicus Curiae Brief — Torwico Electronics, Inc. v. New Jersey Department of Environmental Protection & Energy

\>

No. 93-1187 APR ~ 1 1994 |

In The

SUPREME COURT OF THE UNITED STATES

October Term 1993

TORWICO ELECTRONICS, INC., Petitioner

V.

STATE OF NEW JERSEY, DEPARTMENT OF

ENVIRONMENTAL PROTECTION AND ENERGY,

Respondent

On Petition for a Writ of Certiorari to the

Court of Appeals for the Third Circuit

BRIEF OF KATHRYN R. HEIDT AMICUS CURIAE IN

SUPPORT OF PETITIONER

Party Supported: Petitioner

KATHRYN R. HEIDT

Counsel of Record

468 West Ferry Mall

Detroit, Michigan 48202

(313) 995-9873

MARTIN D. KRIEGEL

Of Counsel

1510 Normandy Road

Ann Arbor, Michigan, 48103

(313) 995-2643

QUESTION PRESENTED

Should the lower courts, in analyzing the dischargeability in

bankruptcy of environmental cleanup obligations, be required to

follow the analytic framework of the Bankruptcy Code and

thereby strictly separate the questions of whether an obligation

is a "claim" from the question of when the obligation "arose?"

TABLE OF CONTENTS

QUESTION PRESENTED................ i

TABLE OF AUTHORITIES............... IV

INTEREST OF AMICUS CURIAE............ l

STATUTES INVOLVED. .......----e sees 2

SUMMARY OF ARGUMENT.............. 4

REASONS FOR GRANTING CERTIORARI... .. . 5

L. THE DECISION OF THE COURT OF APPEALS

FOR THE THIRD CIRCUIT CONFLICTS WITH

THE DECISIONS OF OTHER COURTS OF

APPEALS ON HOW TO ANALYZE THE

DISCHARGEABILITY OF AN

ENVIRONMENTAL CLEANUP OBLIGATION IN

A. Whether an obligation is dischargeable in

bankruptcy depends on two issues: 1)

whether the obligation is a "claim" and 2)

when it "arose," two issues that are often

confused by the courts of appeals, including

the court below, in determining the

dischargeability of an environmental cleanup

GRIN bse ee se es 7

B. The cleanup obligation in this case was a

"claim" because of 1) the plain meaning of

li

the definition and 2) this Court's decision in

SP I ss ck ee ee ee te 14

1. The State had a right to payment.

oe An? ay! ae a rea 14

2. The obligation was a "claim" under

this Court's decision in Ohio v. Kovacs

rae a eg ky 16

3. The court incorrectly applied cases

involving the timing issue to decide

this definitional issue. ... . .. . 18

Cc. The effect of the decision below was to ignore

the real parties in interest... . . . —_ . 19

D. The decision of the court of appeals is

inconsistent with established, fundamental

bankruptcy policies. ....=. =.=. =... «. 19

1. Efficiency and _ fairness are

fundamental bankruptcy principles

on which are based the bankruptcy

policies of 1) the fresh start and 2)

treating similar creditors equally are

eo. ek en rg bees 19

y & The Decision of the Court of Appeals

Violates Both Principles of

Bankruptcy Policy... . ae

A OO a igh cg Sea's m5 24

ee Se eee Su ae

iil

TABLE OF AUTHORITIES

Statutes

SOULS. 6 SORT. we tee, 3, 23

ee I sao aS se ke ws es eee 2, 8, 12

Se eee I ee ee te wee 3, 7, 20

ee eng a eee ae re eee 3, 22

Oe eee IS es als 600 eee el ele eee 3, 20

11US.C.§72%aXl)......-..0--0 00. 20, 22

Se Sooo orate ele ee ae ee eee 2,7

Pe ee ES 2 ose tdca e e e 2,7

EN Io soca h de eget ee Te gee 12

Cases

Jensen, In re, 127B.R.27(9%hB.AP.1991)...... 8,9

Chateaugay Corp. In re, 944 F.2d 997 (2d Cir. 1991) . . 10-

13, 16, 18

CMC Heartland Partners v. Union Pacific Railroad, 3 F.2d

SU os ee ee ee eel 8,9

Iv

CMC Heartland Partners, 966 F2d 1143 (7th Cir 1992)

11-13, 18

In re Chicago, Milwaukee, St. Paul & Pacific Railroad, 974

Fae Tre CG Ses 6 Es oS ee eee 8,9

Jensen, In re, 995 F.2d 925 (9th Cir. 1993)... 2... . 8,9

Local Loan Co. v. Hunt, 282 U.S. 234, (1934)... . 19,20

National Gypsum Co., In re, 139 B.R. 392 (N_D. Tex.

SOD os wk kw ee ee ee eee 14

Ohio v. Kovacs, 469 U.S. 274 (1985)... .... 14, 16, 17

Pa. Dept. Welfare v. Davenport, 495 U.S. 552 (1990) . . 15

Patterson v. Shumate, 112 §. Ct. 2242 (1992) ...... 15

Rake v. Wade, _US _ , 113 S. Ct. 2187(1993). 15

Sylvester Bros. Dev. v. Burlington N. RR., In re, 133 BR.

648 (D. Minn. 1991) ................... 8,9

Toibb v. Radloff, 111 §.Ct.2197(1991)... 0... 15

Torwico Electronics, Inc. v. N. J. Dept. Envnt. Prot., 8 F.3d

146 Geb Ce. 1909)... wk nc eee 4

U.S. v. Ron Pair Enterprises, 489 U.S. 235 (1989)... . . 15

U.S. v. Union Scrap Iron & Metal, 123 B.R. 831 (D. Minn.

EPPO 6 6 6 Vee ee eee 9,14

United States v. Whizco, Inc., 841 F.2d 147 (6th Cir. 1988)

4,11

Miscellaneous

Heidt, Kathryn R., Environmental Obligations in

Bankruptcy: A Fundamental Framework, 44 Florida L

Rev. 153 (1992) . 10

Heidt, Kathryn R., ENVIRONMENTAL OBLIGATIONS IN

BANKRUPTCY (1993) 10, 16

Jackson, Thomas H,, THE LOGIC AND LIMITS OF

BANKRUPTCY LAW (1986) 21

Warren, Elizabeth, Bankruptcy Policy, 54 U. Chi. L. Rev. 775

(1987) 20

vi

INTEREST OF AMICUS CURIAE

Kathryn R. Heidt is a law professor at Wayne State

University Law School in Detroit, Michigan She teaches

bankruptcy law, corporate reorganizations and commercial law

She has written extensively on the intersection of bankruptcy

and environmental law. She is the author of the treatise

ENVIRONMENTAL OBLIGATIONS IN BANKRUPTCY (1993) as well

as several law review articles on the subject She speaks

regularly to judges, practicing lawyers and law professors on the

subject. She hopes that she can bring to these proceedings a

perspective that is broader and may take into account more

interests that those represented by the parties. Those interests

and perspectives are more fully set out in the "Motion for Leave

to File as Amicus Curiae in Support of Certiorari,” filed with

and attached to this brief at its conclusion. A detailed list of her

publications and her speaking engagements are set forth in her

curriculum vitae, a copy of which is attached to that Motion

STATUTES INVOLVED

Section 101(5) of the Bankruptcy Code, (11 U.S.C. § 101(5))

provides:

"claim" means --

(A) right to payment, whether or not such right

is reduced to judgment, liquidated, unliquidated, fixed,

contingent, matured, unmatured, disputed, undisputed,

legal, equitable, secured, or unsecured, or

(B) right to an equitable remedy for breach of

performance if such breach gives rise to a right to

payment, whether or not such right to an equitable

remedy is reduced to judgment, fixed, contingent,

matured, unmatured, disputed, undisputed, secured, or

unsecured;

Section 101(12) of the Bankruptcy Code, (11 U.S.C. § 101(12))

provides: s

"debt" means liability on a claim;

Section 727(a)(1) of the Bankruptcy Code, (11 U.S.C. §

727(a)(1)) provides:

(a) The court shall grant the debtor a discharge unless --

(1) the debtor is not an individual;

Section 727(b) of the Bankruptcy Code, (11 U.S.C. § 727(b)

provides:

Except as provided in section 523 of this title, a

discharge granted under subsection (a) of this section

discharges the debtor from all debts that arose before

the date of the order for relief [the date of the petition in

a voluntary bankruptcy case] under this chapter, ...

Section 726(b) of the Bankruptcy Code, (11 U.S.C. § 726(b)

provides, in part:

(b) Payment of claims of a kind specified in [specified

paragraphs, which include general unsecured claims]

shall be made pro rata among claims of the kind

specified in each particular paragraph, ...

Section 507(a) of the Bankruptcy Code, (11 U.S.C. § 507(a)

provides in part:

(a) The following expenses and claims have priority in

the following order

Section 523(a) of the Bankruptcy Code, (11 U.S.C. § 523(a)

provides in part:

(a) A discharge under section 727, 1141, 1228(a),

1228(b), or 1328(b) of this title does not discharge an

individual debtor from any debt --

(5) [alimony, child support, etc]

(8) [educational loans]

Section 1141(d)(1) of the Bankruptcy Code, (11 U.S.C. §

T141(d)(1) provides:

Except as otherwise provided in this subsection, in the

plan, or in the order confirming the plan, the

confirmation of a plan --

(A) discharges the debtor from any debt that

arose before the date of such confirmation, ...

3

SUMMARY OF ARGUMENT

The United States Courts of Appeals are irreconcilably

divided on the question of how to analyze and decide the issue

of whether an environmental clean up obligation is dischargeable

in a bankruptcy proceeding.

The Court of Appeals for the Third Circuit below held

that an obligation to clean up a contaminated site not currently

owned or operated by the debtor was not a “claim,” was not a

"debt," and therefore was not dischargeable in bankruptcy. /n

re Torwico Electronics, Inc., 8 F.3d 146 (3rd Cir. 1993). The

decision contravenes important provisions of federal law: 1) it

overrides the priority of claims established by Congress in the

Bankruptcy Code and 2) it negates the "fresh start" provided for

by Congress in the Bankruptcy Code.

There are two "types" of conflicts among the courts of

appeals. The first concerns whether an injunction or other order

directing the debtor to cleanup, when the debtor is the former

occupant of the property, is a "claim" within the meaning of the

Bankruptcy Code. It is typified by the decision in the court

below. That decision is in direct conflict with a decision of the

Court of Appeals for the Sixth Circuit, which decided a case

with virtually identical facts. United States v. Whizco, Inc., 841

F.2d 147 (6th Cir. 1988).

The second type of conflict concerns the analytic

approach taken by the courts of appeals in attempting to decide

the dischargeability of environmental cleanup obligations in

bankruptcy. This second type of conflict is also is also typified

by the decision below. In this regard, the decision below is in

conflict with that of several other courts of appeals. The

complexity of issues that arise at the intersection of bankruptcy

4

el

and environmental law have resulted in a split among the courts

of appeals in how they address, analyze and resolve the matters

of environmental obligations in bankruptcy. Due to the many

approaches taken by the courts, there is no uniformity of

analysis at the intersection of these two important bodies of law

Guidance is needed from this Court on this important federal

matter.

Petitioner's Petition addresses the first type of conflict.

This brief addresses the second type of conflict in the courts of

appeals -- that of the proper way to analyze the dischargeability

of environmental obligations in bankruptcy. This brief focuses

on the lack of a unified approach among the courts that results

in such inconsistent and conflicting results

REASONS FOR GRANTING CERTIORARI

iF THE DECISION OF THE COURT OF APPEALS

FOR THE THIRD CIRCUIT CONFLICTS WITH

THE DECISIONS OF OTHER COURTS OF

APPEALS ON HOW TO ANALYZE THE

DISCHARGEABILITY OF AN

ENVIRONMENTAL CLEANUP OBLIGATION IN

BANKRUPTCY

Although the Bankruptcy Code and the environmental

laws regulating hazardous substances were enacted at roughly

the same time, they are not well coordinated.’ As a result there

1. The Bankruptcy Code went into effect in 1979. At

the federal level, the Comprehensive Environmental,

Compensation and Recovery Act ("CERCLA" or "Superfund")

5

is widespread confusion in the courts and a conflict among the

courts of appeals regarding how to analyze and decide those

issues.

The decision in this case is but one of several that show

widespread confusion among the courts regarding the

dischargeability of environmental obligations in bankruptcy.

The intersection of bankruptcy and environmental law has

resulted in a conflict among the courts of appeals in how they”

address, analyze and resolve these cases. The writ of certiorari

should be granted to resolve the conflict and provide much

needed guidance to the courts of appeals and lower federal

courts.’

was enacted and went into effect in 1980.

2. Although this case involves a corporation that was

liquidating, and therefore does not technically need a discharge

because it will cease to exist, the scope of the decision is much

broader. The decision of the Court of Appeals for the Third

Circuit affects all types of debtors and all types of bankruptcy

cases. The decision is premised upon incorrect interpretations

of the technical term "claim" and "debt" as used in the

Bankruptcy Code. The definitions of "debt" and "claim" apply

to all cases under the Code and do not depend on whether the

debtor is a corporation or an individual, or is liquidating or

reorganizing.

A. Whether an obligation is dischargeable in

bankruptcy depends on two issues: 1)

whether the obligation is a "claim" and 2)

when it "arose," two issues that are often

confused by the courts of appeals, including

the court below, in determining the

dischargeability of an environmental cleanup

obligation.

While environmental laws place the responsibility to

clean up on both current owners and on former owners, it is a

fundamental tenet of bankruptcy law that the past is to be

separated from the future. Liability based solely on past

ownership will not survive bankruptcy. Liability based on being

a current owner or operator will, however, arise again and again

every day until satisfied. It will survive bankruptcy. In sum, the

Bankruptcy Code will discharge obligations that arise solely in

the past but not those that continue to arise in the future

At a technical level, the Bankruptcy Code only

discharges "debts" that "arose" before a specified time. 11

U.S.C. §§ 727(b), 1141(d). In a Chapter 11 reorganization an

obligation will be discharged if it fits within the Bankruptcy

Code definition of "debt" and it "arose" before the plan of

reorganization is confirmed by the court. 11 USC. §

1141(d)(1).

The Bankruptcy Code defines a "debt" as a "liability on

a claim." 11 U.S.C. § 101(12). Thus, only obligations that are

within the definition of "claim" are "debts" and therefore subject

to the bankruptcy discharge. The definition of "claim" includes

two sorts of obligations.’ It includes rights that are legal in

nature, i.e., those which are for damages, for money. It also

includes rights to equitable remedies if the breach of the

obligation that gave rise to the remedy also gives rise to a nght

to payment.

Whether an obligation is dischargeable thus depends on

two things, which the courts tend to confuse:

1) whether the obligation is a "debt" within the

meaning of the Bankruptcy Code (the

"definitional" issue), and

2) whether the obligation "arose" before a certain

time (the "timing" issue).*

3. Section 101(5) provides:

"claim" means --

(A) nght to payment, whether or not such nght

is reduced to judgment, liquidated, unliquidated, fixed,

contingent, matured, unmatured, disputed, undisputed,

legal, equitable, secured, or unsecured, or

(B) right to an equitable remedy for breach of

performance if such breach gives rise to a right to

payment, whether or not such right to an equitable

remedy is reduced to judgment, fixed, contingent,

matured, unmatured, disputed, undisputed, secured, or

unsecured.

4. One additional factor complicates some of the cases:

whether the creditor knew or should have known about the

obligation. Lack of knowledge that a debtor might be

responsible for an environmental obligation gives the courts

pause: can a debt be discharged if the creditor (and possibly the

8

Courts often confuse these two issues.’ For example, the Court

debtor) did not even know it existed? Again, there is no

uniformity in the analysis applied by the courts. Some courts

incorporate the element of notice or knowledge into the

definition of "claim," others incorporate it into the timing

element, still others use it as an independent basis on whether a

discharge can be granted. See, e.g., In re Jensen, 995 F.2d 925

(9th Cir. 1993) (claim was discharged since government had

sufficient knowledge about it). In Jensen the Bankruptcy

Appellate Panel had previously held that a claim could exist

although all of the elements of the environmental obligation had

not yet occurred -- specifically, the government had not yet

"incurred" any costs, a prerequisite for bringing suit under

CERCLA. Jn re Jensen, 127 B.R. 27 (9th B.A.P. 1991). See

also CMC Heartland Partners v. Union Pacific Railroad, 3

F.2d 200, 207 (7th Cir. 1993) (claimant had sufficient

knowledge for a claim to arise before the bar date for filing

claims), Jn re Chicago, Milwaukee, St. Paul & Pacific Railroad,

974 F.2d 775, 786 (7th Cir. 1992) (CERCLA claim existed

when the claimant can tie the debtor to a known contamination

and the claimant had in fact conducted tests with respect to the

property), U.S. v. Union Scrap Iron & Metal, 123 B.R. 831 (D

Minn. 1990), Jn re Sylvester Bros. Dev. v. Burlington N. RR.,

133 B.R. 648 (D. Minn. 1991), Waterville Indus. v. First

Hartford Corp., 124 B.R. 411 (D. Me. 1991). The court in

Chateaugay, discussed below, also incorporated a requirement

of some notice into its final determination of whether the

obligation was dischargeable

5. See, Kathryn R. Heidt, Exvironmental Obligations in

Bankruptcy: A Fundamental Framework, 44 Florida L. Rev.153

(1992) for an early argument that the Bankruptcy Code requires

that these issues be separated and for a framework for

9

of Appeals for the Third Circuit below premised its decision, in

part, on the decisions of two other courts of appeals. One of

those courts properly separated the timing issue from the

definitional issue on the facts before it. The other cited court of

appeals decision did not properly separate the two issues. The

Court of Appeals for the Third Circuit likewise fails to do so.

For example, in Jn re Chateaugay Corp., 944 F.2d 997

(2d Cir. 1991), discussed below, the court incorporated

elements of timing into the definition of "claim." In

Chateaugay, the court considered whether injunctions issued to

the debtor to clean up contaminated sites were "claims." The

court held that if the site was not currently causing pollution,

then the injunction was a claim and would be discharged.

However, if the injunction orders the debtor to take "action that

ends or ameliorates current pollution, such an order is not a

‘claim. Id. at 1008. In essence, the court held that cleanup

obligations are not claims if cleanup will end or ameliorate

current pollution. This is a timing issue, it is not part of the

definitional question. The court could have decided the issue

based on the timing issue. The court could have properly held

that the cleanup obligation was a "claim" since CERCLA gives

the government the option of ordering cleanup or cleaning up

and then seeking reimbursement. Once established as a claim,

the question then would be whether the claim arose pre-

confirmation. In Chateaugay, the debtor was reorganizing and

would continue to own and operate several steel plants that

were located on contaminated property. As the continuing

Owner or operator of contaminated property, the reorganized

debtor would be liable every day for cleanup under CERCLA.

approaching these issues. See also, Kathryn R. Heidt,

ENVIRONMENTAL OBLIGATIONS IN BANKRUPTCY, Chapter 3

(1993).

10

Therefore, the claim would continue to "arise" every day until

the property was cleaned up. The cleanup obligation would thus

not be dischargeable.

In its zeal to find these hazardous sites outside the scope

of the bankruptcy discharge, the court in Chateaugay needlessly

added an element to the definition of "claim" (i.e., an obligation

is not a claim if it continues to cause harm). The same result

could have been reached without changing the Code's definition

but by simply applying the timing rules of discharge

At least two courts of appeals have correctly separated

the definitional and the timing issue. First, on virtually identical

facts, the Court of Appeals for the Sixth Circuit based its

decision on the definitional issue. United States v. Whizco, Inc.,

841 F.2d 147 (6th Cir. 1988). Despite the virtual identity of

facts and issues, the Court of Appeals for the Third Circuit fails

to mention Whizco. In Whizco, the government did not have an

alternative right to pursue a money obligation under the

environmental statute concerned. Nonetheless, the court held

that because the debtor would have to pay money to comply

with the cleanup order, the obligation was a "claim." The

conflict between the instant case and Whizco is patent. It is

more fully discussed in Petitioner's Petition (pages 18-19)

Further, in /n re CMC Heartland Partners, 966 F2d

1143 (7th Cir 1992) the court decided the issue of

dischargeability based on the timing issue without confusing it

with the definitional issue. In CMC the reorganized debtor

continued to own the contaminated property. The court held

that the government had both 1) a pre-petition claim for cleanup

and 2) a post-reorganization claim against the debtor survived

the debtor's bankruptcy ** discharge, since the debtor

continued to own the contaminated property. As the Court of

Appeals for the Seventh Circuit said: the liability "runs with the

1]

land." Id. at 1147. That is, the environmental liability runs

with the continued ownership of the contaminated land.°

In the instant case, the court below also confused the

two issues of definition and timing. It applied cases that dealt

with timing question to decide the definitional issue. The court

interpreted both Chateaugay and CMC Heartland to decide

whether Torwico's cleanup obligation was a "claim" within the

meaning of Section 101(5)(B). As noted above, both of these

cases involved the obligation to cleanup contaminated sites that

the debtor continued to own or operate after the

reorganization.’ In the instant case, the debtor did not own the

property in question and had apparently given back possession

of the property to the lessor years earlier.

More importantly, the courts in both Chateaugay and

CMC based their decisions on the timing issue. Both reached

the correct result, despite the fact that the court in Chateaugay

said it was deciding the definitional issues of wheiher the

obligation was a claim. In CMC Heartland it was clear that the

obligation was not discharged in the debtor's previous

6. Under many environmental statutes, occupying or

operating the contaminated land would also be sufficient. See

42 U.S.C. 9607(1).

7. In Chateaugay the debtor was not yet reorganized but

would continue to own or operate certain contaminated

properties post-reorganization. In Chateaugay, it is not as clear

as in CMC Heartland that the dispute was over owned or

operated properties. That is, the language used by the court in

Chateaugay speaks in general terms about ameliorating ongoing

pollution. But the facts indicate that the dispute was over

properties that the debtor owned or operated.

12

reorganization. The debtor continued to own the contaminated

property. Current environmental laws place cleanup

responsibility on the current owner. The issue in Chateaugay

was not so clearly framed, as noted above. Nonetheless, the real

basis for the court's holding was timing: if the cleanup order

would end pollution on the debtor's property it is not a claim.

The court below used these two cases to conclude that

when a cleanup order will end pollution it is not a claim. A

cleanup by Torwico would end the pollution. Thus, the court

reasoned that the obligation was not a "claim."

The cleanup obligation below was within the plain

meaning of the definition of "claim." The only question should

have been when did the claim "arise?" The answer in this case

is that the obligation arose pre-petition and pre-confirmation.

All of the debtor's activities that gave rise to the obligation

occurred in the past. The obligation therefore arose in the past.

This is not like CMC Heartland or Chateaugay where the

debtors continued to own or operate the contaminated property

so that the obligation would arise again after the reorganization.

The decision of the court below is in conflict with decisions of

the Courts of Appeal for the Sixth and Second Circuits

To summanize, the courts of appeals are divided on how

they analyze whether a cleanup obligation is dischargeable. The

Courts of Appeals for the Sixth and Seventh Circuits correctly

respect the division between the definitional and timing issues.

The Courts of Appeals for the Second and Third Circuits

confuse the definitional and the timing issues. This confusion is

a recurring problem in the courts that have considered whether

an environmental obligation to cleanup is dischargeable in

bankruptcy. The courts of appeals are divided on how to

ee eee

___

properly apply the Bankruptcy Code to these environmental

obligations. Guidance is needed from this Court.‘

B. The cleanup obligation in this case was a

"claim" because of 1) the plain meaning of

the definition and 2) this Court's decision in

Ohio v. Kovacs.

The court incorrectly interpreted the Bankruptcy Code.

Its interpretation was wrong both at the technical level and at

the policy level. At the technical level, the court did not apply

the plain meaning of the Bankruptcy Code's definition of

"claim." At the policy level (discussed below in Part I. D.) its

interpretation interfered with two important bankruptcy policies:

to treat similar creditors equally and to provide debtor's with a

fresh start.

In the instant case the governent had a "claim" for two

related reasons. First, the state had an alternative right to

payment. Second, the state had a claim under this Court's

decision in Ohio v. Kovacs, 469 U.S. 274 (1985).

1. The State had a right to payment.

8. Not only have the courts of appeals used conflicting

analyses in deciding whether a particular environmental

obligation is a "claim," the district courts and bankruptcy courts

have likewise used conflicting analysis. See e.g., Jn re National

- Gypsum Co., 139 B.R. 392 (N.D. Tex. 1992), U.S. v. Union

Scrap Iron & Metal, 123 B.R. 831 (D. Minn. 1990). This

further level of conflict and confusion over these federal issues

further support-the need for this Court to grant the writ of

certiorari.

14

ee

The obligation at issue is an order directing the debtor

to cleanup property it once occupied as a lessee. On its face the

order does not give the state a right to payment. Thus, the

question is whether the state had a "right to an equitable remedy

for breach of performance if such breach gives rise to a night to

payment, ..." If it did, the obligation is a "claim."

This Court has adopted a "plain meaning" approach to

interpretation of the Bankruptcy Code. Rake v. Wade, _ US

__, 113 S. Ct. 2187 (1993), Patterson v. Shumate, 112 S. Ct

2242 (1992), Toibb v. Radloff, 111 S. Ct. 2197, 2199 (1991),

Pa. Dep.'t Welfare v. Davenport, 110 S.Ct. at 2131 (1990), U.S

v. Ron Pair Enterprises, 489 U.S. 235 (1989). When the statute

is plain, “the sole function of the courts is to enforce it

according to its terms." Ron Pair, 489 US at 241 (citations

omitted)

The debtor breached an -obligation here when it

improperly disposed of hazardous substances. It breached

another obligation when it failed to clean up. These obligations

gave rise to two sorts of remedies, one equitable and one legal

Specifically, the state had the option to clean up the site and

then to seek reimbursement from the debtor. The basis of this

argument is more fully set out in Petitioner's Brief pp. 16-17. In

essence, the state claims that it had no such right under the state

statute pursuant to which it acted. However, the state did have

an equivalent right to clean up the site under another state

statute and then to seek reimbursement. The state may have

also had the right to clean up under Section 104 the federal

statute, the Comprehensive Environmental Response,

Compensation and liability Act ("CERCLA") and then to seek

eee eee —— ee

reimbursement.’ Thus, the state had the right to an equitable

remedy (to enjoin the debtor to cleanup the previously leased

property and the state also had the right to clean up the property

and then to seek reimbursement.

This alternative right to pursue a legal remedy makes the

obligation a "claim" within the plain meaning of the Bankruptcy

Code.

2. The obligation was a "claim" under this

Court's decision in Ohio v. Kovacs.

Even if there was no alternative right to payment, the

obligation is a "claim" under this Court's decision in Ohio v.

Kovacs, 469 U.S. 274 (1985).. In Kovacs an order had been

entered under the state's environmental laws ordering the

debtor, Mr. Kovacs, to clean up a site. The State of Ohio had

no right to pursue the debtor for money in place of action.

When Mr. Kovacs failed to comply, the state had a receiver

appointed, pursuant to state law, who dispossessed the debtor

from the property. This Court held that since the debtor was no

longer in possession he could not perform cleanup but could

only pay money. The obligation was therefore a "claim," was a

"debt" and was dischargeable in Mr. Kovac's bankruptcy

proceeding. "°

9. One other court has refused to rule that all such

CERCLA obligation are "claims." Jn re Chateaugay Corp., 944

F.2d 997 (2d Cir. 1991). As Petitioner argues that case is

distinguishable from this case since the debtor thus owned much

of the property in question.

10. For an in depth discussion of Kovacs and its effects

see, Kathryn R. Heidt, ENVIRONMENTAL OBLIGATIONS IN

16

The instant case is virtually identical to the Kovacs case.

In both cases the debtor had probably contaminated the site in

question. In both cases the debtor had been ordered to clean up

the site. In both cases the debtor neither owned, operated or

occupied the site in question at the time of the bankruptcy."’ In

both cases the only thing the debtor could do to clean up the site

was to pay money.

BANKRUPTCY § 3.03[3][c][ii] (1993) at pages 3-25 to 3-28

11. The court below distinguished Kovacs by saying that

Torwico could gain access to the land. 8 F.3d at 151.

However, 1) it is not at all clear that Torwico had access to the

land (it had left the premises, which it had leased years before)

and 2) it is not clear that the debtor did not have access to the

land in Kovacs.

The court below also distinguished Kovacs by saying

that in Kovacs the state was seeking money. 8 F.3d 151. The

state had not actively sought money but had admitted in oral

argument at the appellate level that it would be satisfied with

money. While this Court did note this admission in the Kovacs

opinion, this Court's holding rests squarely on the fact that the

debtor was not in possession of the property and could only

satisfy the obligation by paying money. Further, in all

likelihood, New Jersey would also be satisfied with a payment

large enough to cover the cleanup. The mere fact that one state

admits a willingness to take money -- even when otherwise

entitled to a pure equitable remedy -- while another scrupulously

avoids seeking money in any form, should not control. This

would allow creditors to turn dischargeable obligations into

non-dischargeable ones at their whim

17

|

Under Kovacs, the obligation of the debtor in this case

was a "claim." As Petitioner's brief argues, to the extent the

Court of Appeals for the Third Circuit held otherwise below, its

decision conflicts with a decision of this Court. (Petitioner's

Brief, pages 12-17).

3. The court incorrectly applied cases involving

the timing issue to decide this definitional

issue.

In the instant case, the court below confused the two

issues of definition and timing. It applied cases that dealt with

timing question to decide the definitional issue. The court

interpreted both Chateaugay and CMC Heartland to decide

whether Torwico's cleanup obligation was a "claim" within the

meaning of Section 101(5\(B). As noted above, (Part I.A.) both

Chateaugay and CMC Heartlandof these cases involved the

obligation to cleanup contaminated sites that the debtor

continued to own or operate after the reorganization. '”

The decision of this court conflicts with other courts of

appeals on the method of analyzing and decising cases on this

issue.

12. In Chateaugay the debtor was not yet reorganized

but had sought a declaratory judgment regarding the status of

the cleanup obligations once it was reorganized and would

continue to own or operate certain contaminated properties

post-reorganization. In Chateaugay, it is not as clear as in CMC

Heartland that the dispute was over owned or operated

properties. That is, the language used by the court in

Chateaugay speaks in general terms about ameliorating ongoing

pollution. But the facts indicate that the dispute was over

properties that the debtor owned or operated.

18

os The effect of the decision below was to ignore

the real parties in interest.

The court confused the debtor with its creditors. This

is not an uncommon problem in cases dealing with similar

issues. The court seemed to view the dispute as a contest

between the government and the debtor. The problem, of

course, is that once the debtor is in bankruptcy, the real parties

in interest are the creditors. The dispute below is more properly

viewed as one between one creditor (the government) and the

other creditors. The case thus actually presents a question

about the priority of payment to creditors and should have been

decided with that focus. This incorrect focus led the court

below to annul a fundamental bankruptcy policy: equality for

similarly situated creditors, discussed below (Part 1.D.2.).

D. The decision of the court of appeals is

inconsistent with established, fundamental

bankruptcy policies.

1. Efficiency and fairness are fundamental

bankruptcy principles on which are based

the bankruptcy policies of 1) the fresh start

and 2) treating similar creditors equally are

based.

Bankruptcy law serves many goals. One goal is to

provide debtors with a fresh start. A second is to treat similar

creditors similarly. The decision of the Court of Appeals

violates both of these goals.

The idea of a “fresh start" in bankruptcy is well

established in our bankruptcy system. It has been recognized on

19

many occasions by this Court. See, e.g., Local Loan Co. v.

Hunt, 282 U.S. 234, 244-45 (1934). To accomplish the goal of

the fresh start, the debtor receives a discharge of his, her or its

debts. The honest individual debtor can then continue on with

life. Corporations and other non-individuals receive a discharge

only if they “reorganize.""* The idea of a “fresh start” for

corporations and other non-individuals is thus more

appropriately viewed as "debtor rehabilitation,” one of the

Congressional goals of the Bankruptcy Code. S. Rep. No. 589,

95th Cong., 2d Sess. 9, reprinted in 1978 U.S.C.C.A.N. 5787,

5795. The corporation that reorganizes can continue on with its

business, which in turn means it will continue to employ

employees, buy supplies, pay taxes, and be a productive

corporate citizen. Reorganization serves all of the efficiency

goals of the bankruptcy laws described below and it also serves

to protect a variety of interests: those of employees, the

community, suppliers, and other groups that are not necessarily

"creditors." See, Elizabeth Warren, Bankruptcy Policy, 54 U.

Chi. L. Rev. 775 (1987).

Key to the individual fresh start and the corporate

rehabilitation is the discharge of the débtor's past debts.

A second goal of the bankruptcy system is to assure

equality among similarly situated creditors: creditors with similar

claims should share equally. Under the Bankruptcy Code,

unsecured creditors share on a pro-rata basis.'* This second

goal is not only fair, it is efficient. Bankruptcy is generally

13. Section 727(a)(1) denies a discharge in a Chapter 7

case to a non-individual debtor; Section 1141(d) grants a

discharge to a debtor that reorganizes.

14. See, e.g., 726(b).

20

viewed as an efficient response to widespread default. First,

bankruptcy avoids duplication of costs. If creditors were forced

to pursue the debtor in state court, each creditor would spend

money on Court costs, attorneys fees, and related costs. In

addition, the debtor may use some of the limited assets to

defend these suits -- money that would otherwise be available

for ultimate distribution to the creditors. Second, in some cases,

keeping debtor's assets together as a whole rather than selling

them piecemeal may produce a greater recovery. Bankruptcy

serves to preserve this potentially greater value of the debtor's

estate by keeping the assets together.

As noted above, outside of bankruptcy, creditors are

normally left to their state law remedies to pursue the debtor

and to attempt to recover. Under the state law system, creditors

can sue the debtor for a debt owed. As each creditor recovers,

it can foreclose or execute on certain property of the debtor.

The state system works so long as the debtor has the ability to

pay its creditors. When the debtor does not have enough assets

to pay all of the creditors, the first few creditors to "win the race

to the courthouse” recover, and later creditors recover nothing.

Under the state law system, therefore, creditors with similar

types of claims, such as general unsecured creditors, would be

treated very differently -- some would be paid in full and some

not at all. Bankruptcy evens out this disparity and attempts to

treat all similar creditors similarly. This is fair: Two identical

creditors could be equally diligent in pursuing the debter but one

might prevail over the other in the state law system simply

because of the random draw of a faster judge with a fast moving

docket. It is also efficient: If all unsecured creditors could

bargain in advance for the distribution of assets upon a massive

default by the debtor, they would agree to a pro-rata

distribution. Bankruptcy accomplishes this for them. See,

Thomas H. Jackson, THE LOGIC AND LIMITS OF BANKRUPTCY

LAW 15-17 (1986).

21

2. The Decision of the Court of Appeals Violates

Both Principles of Bankruptcy Policy

Congress established that all "claims" that "arose" before

a particular time are to be discharged in bankruptcy. In the case

of the individual debtor, Congress has provided a limited set of

exceptions to this rule.'* Absent these special circumstances

individual debtors in all are entitled to a discharge.

Corporations that reorganize under Chapter 11 also are entitled

to a discharge.

By holding that the cleanup obligation in 7orwico was

not a "claim" or a “debt,” the court effectively denies debtors a

discharge when they would otherwise be entitled to discharge.

The decision disregards the express provisions of the

Bankruptcy Code. This rule now in effect in the third circuit

(cleanup obligations are not "claims") will apply to deny the

individual debtor a fresh start and to deny a corporation that

does reorganize the ability to effectively reorganize. '®

15. Under Section 523(a) child support, most taxes

educational loans and certain other debts are not dischargeable.

An environmental obligation may be excepted from discharge if

it fits within Section 523(a)(6) (willful and malicious acts) or

(a)(7) (certain fines and penalties).

Under Section 727(a) a debtor can be denied a

discharge altogether for engaging in certain fraudulent acts.

16. As noted earlier, Torwico is not reorganizing. It will

not receive a discharge under the Bankruptcy Code since it is

not reorganizing. The rule the case establishes, however, will

apply to all bankruptcies.

22

The decision of the Court of Appeals for the Third

Circuit also violates the principle of equality among creditors

Nothing in the state environmental law gives the State of New

Jersey a right to be paid before other general unsecured

creditors. Congress could have provided a special priority for

environmental obligations. It has provided priority for certain

employee wage claims, taxes and certain other obligations.'’ It

has not given priority for environmental obligations. As noted

by Justice O'Conner in her concurring opinion in Kovacs, the

state can avoid the result of Kovacs by enacting a lien statute

In the future the state of New Jersey could possibly gain some

priority by enacting a statute granting to itself a lien for

environmental obligations."

There is no basis on which to give New Jersey priority

here. Yet, the effect of the decision of the court of appeals is to

require that the assets of the estate be used to satisfy the

government's obligation first, before all other obligations. This

elevates New Jersey's obligation above the others. It is unfair

and inefficient because it violates the bankruptcy principle that

"equality is equity."

This obligation is no different from a whole variety of

non-consensual obligations. For example, a victim injured in an

accident by the debtor's delivery truck before a bankruptcy is

filed, or an employee injured on the job before a bankruptcy is

filed, each have claims that arose in the past. Their claims will

be discharged in bankruptcy. There may be a current

requirement to compensate those victims under applicable tort

17. See, e.g., 11 U S.C. 507(a)(3) and (7)

18. New Jersey does in fact have an environmental lien

law in effect. It evidently does not apply to this case

oe.

“)

law, just as there is a current obligation to clean up the

previously occupied contaminated site, but the obligation arose

solely out of past activity, not current activity. Unless there is

some specific provision given to us by Congress, the usual

priority rules apply -- unsecured creditors are treated equally.

The decision in this case violates that principle.

SUMMARY

This cases raises important questions of federal law.

There is no uniformity in the courts on the question of when an

environmental cleanup obligation is dischargeable in bankruptcy.

The courts continue to decide these cases using very different

analyses. This Court should allow the writ of certiorari to issue

in order to provide the much needed guidance on this important

federal question.

CONCLUSION

The writ of certiorari should be granted.

KATHRYN R. HEIDT

Counsel of Record

Wayne State Univ. Law School

468 West Ferry Mall

Detroit, Michigan 48202

(313) 995-9873

MARTIN D. KRIEGEL

Of Counsel

1510 Normandy Road

Ann Arbor, Michigan, 48103

24

No. 93-1187

SUPREME COURT OF THE UNITED STATES

October Term 1993

TORWICO ELECTRONICS, INC., Petitioner

v.

STATE OF NEW JERSEY, DEPARTMENT OF

ENVIRONMENTAL PROTECTION AND ENERGY,

Respondent

On Petition for a Writ of Certiorari to the

Court of Appeals for the Third Circuit

MOTION FOR LEAVE TO FILE

AMICUS CURIAE IN SUPPORT OF CERTIORARI

Movant, Kathryn R. Heidt, requests this court to allow

her to file an amicus curiae in support of Petitioner's "Petition

for Writ of Certiorari."

Movant sought the consent of both parties to filing.

Petitioner has given its consent (see attached letter), but the

State of New Jersey has not.

Movant is a law professor at Wayne State University

Law School in Detroit, Michigan. She has written extensively

on the intersection of bankruptcy and environmental law. She

Motion for Leave to File

Page |

ee ee a a ee Nae e area

is the author of the treatise ENVIRONMENTAL OBLIGATIONS IN

BANKRUPTCY (1993). Her other publications include: The

Changing Paradigm of Debt and Obligation, Washington

University Law Quarterly (forthcoming), Environmental

Claims in Bankruptcy: A Fundamental Framework, 44 Florida

Law Review 153 (1992), Automatic Stay in Environmental

Bankruptcies, 67 American Bankruptcy Law Journal 69 (1993),

Liability of Shareholders Under the Comprehensive

Environmental Response, Compensation and Liability Act

("CERCLA"), 52 Ohio State Law Journal 133 (1991), Cleaning

Up Your Act: Efficiency Considerations in the Battle for the

Debtor's Assets in a Toxic Waste Bankruptcy, 40 Rutgers Law

Review 819 (1988). Movant teaches bankruptcy law, corporate

reorganizations and commercial law.

Movant has also lectured frequently on the subject of

environmental obligations in bankruptcy before a wide variety

of audiences including audiences made up of federal judges (the

55th Judicial Conference of the Third Circuit: Moderator and

Speaker, Baltimore, Maryland, April 1993.), bankruptcy

teachers and scholars (Association of American Law Schools

Annual Meeting, January, 1994, The Washington University

Interdisciplinary Conference on Bankruptcy and Insolvency

Theory:, February, 1994, Association of American Law

Schools, Bankruptcy Workshop, October 1991) and bankruptcy

lawyers (American Bar Association, October 1993, April

1990). Her curriculum vitae is attached.

Movant brings a perspective to these proceedings that

may be broader and take into account more interests than those

represented by the parties. Specifically, Movant has considered

in depth the effect that a ruling in this case will have on a

number of different interests. These different interests include

creditors, both secured and unsecured, consensual and non-

Motion for Leave to File ...

Page 2

consensual, debtors, shareholders, governments, taxpayers, and

community in which debtors operate. She is familiar with the

practical, conceptual, and theoretical problems that present

themselves at the intersection of bankruptcy and environmental

law and specifically with the problems that are present when the

dischargeability of an environmental obligation is at issue -- as

it is in this case. Movant believes that this broader perspective

will bring to the Court's attention the effects of this Court's

decision on persons and entities beyond the parties to this

proceeding. Movant also believes she will cover the issues

relating to bankruptcy policy in more detail than the parties to

this action.

Movant, respectfully requests this Court to grant her

leave to file the attached Amicus Curiae In Support of Petition

For A Wnit of Certiorari.

KATHRYN RK. HEIDT

Counsel of Record

468 West Ferry Mall

Detroit, Michigan 48202

(313) 995-9873

MARTIN D. KRIEGEL

Of Counsel

1510 Normandy Road

Ann Arbor, Michigan, 48103

(313) 995-2643

Motion for Leave to File

Page 3

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(202) 682-7001 March 24, 1994

Katherine Heidt

1510 Normandy Road

Ann Arbor, MI 48103

Re: Torwico Electronics, Inc. v. State of New Jersey,

Department of Environmental Protection and Energy,

No. 93-1187 (U.S. petition for cert. filed Jan.

24. 1994)

Dear Me. Heidt:

Enclosed please find a copy of the petition for certiorari

in the captioned case. On behalf of Petitioner Torwico

Electronics, Inc., I consent to your filing an amicus brief in

the case.

OCFSOS. . . : \BV\77BBP\000S\ 15546\. TREZ6% . 160

* BEST AVAIL

Kathryn R. Heidt

1510 Normandy Road Telephone: (313) 995-9873

Ann Arbor, Michigan 48103

Employment

Associate Professor of Law, Wayne State University Law School, Detroit, Michigan 48202,

1985 to present (tenured)

Visiting Associate Professor of Law, New York Law School, New York, New York 10013,

1992-93

Visiting Professor of Law, University of Utrecht, Faculty of Law, Utrecht, The Netherlands, Fall

1988 (exchange program)

Associate, Duane, Morris & Heckscher, Philadelphia, Pennsylvania 19102, 1980 to 1984

Law Clerk, The Honorable John T. Patton, Cleveland, Ohio 44114, Ohio Court of Appeals,

1978 to 1980

Selected Bibliography

Books

ENVIRONMENTAL OBLIGATIONS IN BANKRUPTCY (Warren Gorham & Lamont, 1993)

Articies

The Changing Paradigm of Debt and Obligation, Washington University Law Quarterly

(forthcoming)

The Automatic Stay in Environmental Bankruptcies, 67 American Bankruptcy Law Journal 69

(1993)

Environmental Claims in Bankruptcy: A Fundamental Framework, 44 Florida Law Review 153

(1992)

Interest Under Section 506(b) of the Bankruptcy Code -- The Right, The Rate, and the

Relationship to Bankruptcy Policy, 1991 Utah Law Review 361 (1991)

Liability of Shareholders Under the Comprehensive Environmental Response, Compensation

and Liability Act ("CERCLA"), 52 Ohio State Law Journal 133 (1991)

Corrective Justice From Aristotle to Second Order Liability: Who Should Pay When The

Culpable Cannot? 47 Washington & Lee Law Review 347 (1990)

Cleaning Up Your Act: Efficiency Considerations in the Battle for the Debtor's Assets in a Toxic

Waste Bankruptcy, 40 Rutgers Law Review 819 (1988)

BLE COPYS

Selected Bibliography, Articles (continued)

Liability of Lefiders for Environmental Cleanup (published by the American Bar Association for

the program “Real Estate Bankrupicies in the 1990's,” November 1990)

Corrective Justice: Unifying and Extending Themes of Liability (article in progress)

Use of Debtor's Tax Attributes in Bankruptcy Liquidation Proceedings (article in progress)

Short Articies

Bankruptcy and Environmental Liability: A Primer, | Journal of Environmental Law & Practice

39 (1994)

Counting Creditors: Further Analysis of Code Section 303(b), 1992 Norton Bankruptcy Law

Advisor (November 1992)

Education

Yale Law School, New Haven, Connecticut

LL.M., May 1985

Cleveland State University College of Law, Cleveland, Ohio

J.D., magna cum laude, June 1978

Academic Standing: 3/156

Editor, Law Review

Pennsylvania State University, University Park, Pennsylvania

B.A., cum laude, Art History, 1974; Academic Standing: 3.56/4.00,

Pennsylvania State University Orchestra (violin)

Honors Program

Goethe Institute, Arolsen, West Germany, Summer 1973

Teaching Interests

Subjects taught include Commercial Law, Bankruptcy and Creditors'/Debtors' Rights, Corporate

Reorganizations, Business Negotiation, Introduction to American Law; Additional interests

include Corporations, Contracts, and Environmental Law

Selected Speaking Engagements and Presentations

The Washington University Interdisciplinary Conference on Bankruptcy and Insolvency Theory:

“The Changing Paradigm of Debi,” Si. Louis, Missouri, February 26, 1994

Association of American Law Schools Annual Meeting: "How Superfund Mucks-Up Your

Course” (Part of an all-day Mini-workshop on “Environmental Issues Across The Curriculum”),

Orlando, Florida, January 6, 1994

American Bar Association: "Keeping the Bulls Out of the China Shop” (at the National

Conference of Bankruptcy Judges) Orlando, Florida, October 19, 1993

Selected Speaking Engagements and Presentations (continued)

55th Judicial Conference of the Third Circuit: Moderator and Speaker, "Resolving

Environmental Claims In Bankruptcy,” Baltimore, Maryland, April 1993

American Bar Association: Moderator and Program Coordinator, "Chapter 11: Current

Controversies, Future Fixes,” (at the National Conference of Bankruptcy Judges) San Antonio,

Texas, October 17, 1992

University of Texas Law School, 10th Annual Bankruptcy Conference: "The Automatic Stay

In Environmental Bankruptcies,” Austin, Texas, November 16, 1992

Eastern District of Pennsylvania Bankruptcy Conference:

January 29, 1994; "Confirmation and Disclosure in Chapter 11 Reorganizations"

January 30, 1993: “Ethical Issues in Bankruptcy: Pre-bankruptcy Planning”

January 25, 1992: "Environmental Obligations in Bankruptcy” January 1992

Association of American Law Schools, Bankruptcy Workshop, Faculty Member, "Bankruptcy

and Environmental Law,” Washington D.C., October 1991

American Bar Association, Moderator, "Recent Decisions Involving Environmental Claims in

Bankruptcy,” San Francisco, California, October 1991 (at the National Conference of

Bankruptcy Judges)

American Bar Association, Program Coordinator, "Real Estate Bankruptcies in the 1990's,”

Chicago, Illinois, November 1990 (at the National Conference of Bankruptcy Judges)

American Bar Association, "Current Developments,” Boston, Massachusetts, April 1990

Other Scholarly Activities and Public Service

Chair, Association of American Law Schools, Debtor-Creditor Section (1994)

Chair, Programs and Publications Subcommittee, Business Bankruptcy Committee, American

Bar Association, Business Law Section (October 1993 to October 1995)

Editorial Peer Reviewer for THE BUSINESS LAWYER

Editorial Peer Reviewer for the LAND USE AND ENVIRONMENT LAW REVIEW

Member, Board of Editors for the JOURNAL OF BANKRUPTCY LAW AND PRACTICE

Interview by The Washington University School of Law Environmental Law Society. The

interview appears at: 2 ELS Reporter 32 (Fall 1992)

Guest, New York cable TV program "Lawline.” This half-hour show aired in the New

York/New Jersey area during the month of February, 1993.

Other Scholariy Activities and Public Service (continued)

Represented a United States District Judge in opposing a petition for certiorari before the United

States Supreme Court regarding attorney contempt in the federal courts (Winter 1986)

Volunteer Lawyers Action Program, Philadelphia Bar Association, (represented indigent clients

in bankruptcy proceedings) (1981-1983)

Testified on the proposed federal Bankruptcy Rules and prepared a written statement on those

proposed rules (1982)

Reported to the Bankruptcy Committee of the Philadelphia Bar Association on portions of the |

proposed Bankruptcy Rules (1982)

University and Law School Service

Academic Senate, Law School Representative (1989-1992)

President's Commission on the Status of Women, Chair (1991-92), Member (1989-92)

Various Law School Committees including Personnel/Faculty Recruitment (1989-1990 and

1993-94), Career Services (Chair 1993-94), Programs (1991-92), Placement (1990-91).

Admissions (1986-1989), Long Range Planning (1986-87), Budget (1986-87), Ad Hoc

Computer Committee (1985-86)

Faculty Advisor, Student team for the American Bar Association's negotiation competition (Fall

1993)

Bar Admissions Ohio, 1978; Pennsylvania, 1980

Research Awards

Selected as the Senior Nominee by Wayne State University for the 1992 National Endowment

for the Humanities summer stipend

Summer Research Grant Recipient, Wayne State University (summers 1985 through 93)

References Available Upon Request