⌛ Mr. Michelsons Argumentative Analysis
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Morality, Crime, and Punishment. The next day, Marian remained much the same and Madame Fosco prepared to travel to London. Count Fosco took her to the station and returned the next day with the nurse, Mrs. Rubelle , a very quiet, foreign woman. Rubelle left alone with her sister. Michelson could see nothing to complain of in the way Mrs. Rubelle cared for Marian. Her attitude is condescending, and she feels that she does foreigners a favor by tolerating them despite their inferior backgrounds and cultures. Even though Marian seemed to improve during this period, Madame Fosco confided in Mrs. Michelson that she did not trust the doctor, Mr. She wrote to the Count every day; proof, Mrs. Michelson believes, of the ideal state of their marriage. She does not suspect Madame Fosco of trying to turn her against the doctor.
It is very ironic that Mrs. Michelson believes Count Fosco and Madame Fosco have an ideal marriage, as Madame Fosco is little more than a spy and a slave for the Count. This further critiques conventional nineteenth-century beliefs about gender and marriage, which suggested that a perfect marriage was one in which a wife was totally obedient to her husband. Collins shows that the reality of this is monstrous. He was furious with Mr. He hired a new doctor to get a second opinion. This doctor agreed with the Count that it was typhus and said that they would have to wait at least five days to see if Marian would recover. On the tenth day after this, Marian was declared out of danger. On the same day, Count Fosco had another huge argument with Mr.
Dawson and sent him away from the house. Although Marian was not yet well, Sir Percival refused to hire another doctor. It is unclear whether Count Fosco is genuinely concerned about Marian or whether he is trying to make her illness worse by dismissing Mr. The doctor he brings in could be one of his conspirators, but it is left ambiguous at this point. Sir Percival seems to be in on this. Later that day, Mrs. He said that he needed to save money and that, as soon as Marian could travel, himself, Marian, Laura , and Count Fosco , and Madame Fosco would leave Blackwater Park for the rest of the summer.
Michelson was horrified and tried to reason with Sir Percival, but he accused the servants of taking advantage of him and of wasting his money. It is unlikely that the plan would have been confirmed. Patently defective disclosure would, in and of itself, have been fatal to confirmation because the plan proponent would not be able to prove that he complied with the requirement to disclose "adequate information. In addition, the undisclosed facts, in light of the nature of Whitehead's promised role, cast doubt on, and likely would have been fatal to, the required conclusion that confirmation "is not likely to be followed by the liquidation, or the need for further financial reorganization, of the debtor or any successor to the debtor under the plan, unless such liquidation or reorganization is proposed in the plan.
This determination of feasibility requires discriminating judgment and careful balancing of complex factors that cannot reliably be made without full and complete disclosure of material facts. The suppression of material facts that likely would have led to a different result unambiguously constitutes an impairment of the adjudicatory process. In the disclosure and confirmation process in reorganizations under chapter 11, the plan proponent and the proponent's counsel have a duty to make full, candid, and complete disclosure of material facts. Failure to do so may lead, as here, to a conclusion that there has been a fraud on the court. Having concluded that there was a fraud on the court that was material to confirmation, the order confirming the plan of reorganization must be revoked.
Two additional matters must be addressed as required by section First, the order revoking the confirmation must also revoke the discharge of the debtor. The revocation of discharge does not necessarily preclude a later discharge, rather it restores the status quo immediately before confirmation. A future discharge, in principle, remains available either by way of another confirmed plan of reorganization or, following conversion, under chapter 7. An objection to future discharge of an individual is also permitted. Finally, the order revoking the plan must contain provisions that are necessary to protect any entity that acquired rights in good faith reliance on the order of confirmation. The intervenors are such persons and are agreed upon language that will protect their rights.
On request of a party in interest at any time before days after the date of the entry of the order of confirmation, and after notice and a hearing, the court may revoke such order if and only if such order was procured by fraud. An order under this section revoking an order of confirmation shall. Michelson averred that Whitehead prepared the financial projections. Following confirmation of the plan, what position or positions will you hold with Michelson Sod Farms? I will continue on in the same capacities that I am now: The cost controller, sales manager and assistant general manager.
When I say "new markets," I mean the shifting of its current overseeing of the operation of the company as a whole. To ensure continuity of management, is there any understanding as to how long you will be retained by Michelson Sod Farm? What provisions have been made in the event that you are unable to manage Michelson Sod Farms for any reason? In that WEI was in chapter 7, it is not apparent why the application was filed. This key point of procedure is often overlooked by litigants who must make an odyssey through the Federal Rules of Bankruptcy Procedure to determine it. Specifically, Federal Rule of Bankruptcy Procedure b 1 provides that an objection to confirmation is a "contested matter" governed by Federal Rule of Bankruptcy Procedure , which in turn provides that Federal Rules of Bankruptcy Procedure and apply, and that one desiring to perpetuate testimony may proceed in the manner provided by Federal Rule of Bankruptcy Procedure Rules are identical to each other in form each stating different Civil Rule number : "Rule  F.
Plans proposed by creditors with whom the debtor has not been forthcoming typically are liquidation plans. The definition of "adequate information" accommodates the possibility that adequate information about a liquidation plan may be different than such information about a proposed restructuring of the business. The definition focuses upon the ability to make an informed judgment "about the plan" and specifically provides that "adequate information need not include such information about any other possible or proposed plan.
Judicial approval of a disclosure statement as containing "adequate information" creates a safe harbor from liability under securities laws for those who solicit acceptances of a plan or who participate in offering a security provided that two conditions are satisfied. The solicitation must be 1 in good faith and 2 in compliance with the Bankruptcy Code. A failure to disclose "adequate information" is a failure to comply with applicable provisions of the Bankruptcy Code and may also flunk the condition of good faith.
Although Rule b 2 uses language that arguably qualifies for the notice and opportunity for hearing procedure contemplated by section 1 , the mandate of an actual hearing at section a cannot be countermanded by rule. The Federal Rules of Evidence and Rules 43, 44 and The applicability to "cases under the Code" means that these rules apply to all matters that arise in a bankruptcy, regardless of whether they constitute "adversary proceedings" or "contested matters. The court has the discretion to leave the presentation of evidence at the hearing entirely to counsel and, if not satisfied that the plan meets the requirements for confirmation, merely deny confirmation.
One of the natural parts of the judicial function, in its orthodox and sound recognition, is the judge's power and duty to put to the witnesses such additional questions as seem to him desireable to elicit the truth more fully. The right to question is, of course, limited by the judge's duty to at all times retain the role of impartial arbiter. The judge is the trier of fact and must be assured that confirmation of the plan is warranted.
It follows that the judge has broader discretion to question witnesses than at an ordinary trial. Such use may be particularly desirable in bench trials or where the interest of others than the immediate parties may be at stake, as in class actions, or matters involving public policy, such as antitrust or patent litigation [or confirmation of plans of reorganization]. Mauet, Fundamentals of Trial Techniques, at 13 ; R. Keeton, Trial Tactics and Methods, at 36 2d ed.
See 7 J. The judge may, upon application of parties in interest filed at any time within six months after a composition has been confirmed, set the same aside and reinstate the case if it shall be made to appear upon a trial that fraud was practiced in the procuring of such composition, and that the knowledge thereof has come to the petitioners since the confirmation of such composition. In re Edwards, F.
Neither section nor Rule appears to preclude the court from acting under Rule 60 more than days after confirmation to correct clerical errors or to grant relief from the order by means other than revocation of the order. This case, however, does not present the occasion for examining the contours of the relation between revocation and other measures. Any party in interest may, at any time within six months after a plan has been confirmed, make a motion pursuant to the Act to revoke the confirmation as procured by fraud.
The circumstances constituting the alleged fraud shall be stated with particularity. The Congress was merely emphasizing that fraud is the exclusive basis for revoking confirmation. Instead of a straightforward adaptation that would have limited the fraud to the proponent of the plan in recognition that someone other than the debtor could now propose a plan, the Congress eliminated perpetrator requirement entirely.
In re Mosely, 74 B. Ohio ; In re Edwards, 67 B. The difficulty with such analogies is that they artificially import policy considerations that are inapplicable, unduly diminish the factor of the effect of the conduct on confirmation in favor of looking for actual damage, and may eventually lead to the kind of perverse results that historically have made courts reluctant to craft rigid definitions of fraud.
The preambular language, "such as," to that list makes clear that the named means are merely examples. The use of the connector "or" between subsections a 5 I and J compels the same conclusion under the rule of construction prescribed at 11 U. He ultimately pled guilty to one count of subscribing to false tax returns. The pitfall in this instance is that counsel, by putting words into Michelson's and Whitehead's mouths, has greater difficulty disclaiming participation in a fraud on the court.
Plaintiff [creditor's committee] was not barred from any investigation or discovery regarding Mr. Plaintiff chose not to investigate. Therefore, Defendant had no obligation to revise or amend the Disclosure Statement and resume. Equitable principles dictate that Plaintiffs['] lack of vigilance is grounds not only to deny the immediate relief requested, but to dismiss the Complaint. Fifth Amendment; Fed. A pending indictment for financial crimes certainly raises sufficiently legitimate questions about one's qualifications to be a chief financial officer under a plan of reorganization as to warrant disclosure and explanation. Whitehead's duties and performance [as MSF's chief financial officer]" and that "it was inconceivable that the Creditor's Committee might give any weight to the indictment's allegations" fails the straight-face test.
The only plausible explanation for nondisclosure was that nondisclosure was intended to facilitate confirmation of the plan. Your Notes edit none. First Union Nat. Bank of Fla. Authorities 21 This opinion cites: Hazel-Atlas Co. Hartford Co. Los Angeles Lumber Products Co. Appeal of Landahl, … 1 time View All Authorities. Please support our work with a donation. Bankruptcy No. United States Bankruptcy Court, E. June 30, KLEIN, Bankruptcy Judge: Among the rocks and shoals of post-confirmation matters is the poorly charted question whether materially defective disclosure used in connection with obtaining confirmation of a plan of reorganization constitutes a fraud that permits revocation of the confirmation order under 11 U.
Summary Judgment Facts There is no genuine issue of material fact. The Role of Disclosure in the Confirmation Process The issue of defective disclosure in reorganization cases arises within the framework of chapter 11, which has provisions setting minimum standards for plans 11 U. The term "adequate information" is statutorily defined to mean:. Role of the Court in the Confirmation Process The court's role in the confirmation process is more active than its role in garden-variety litigation. Section a 1 requires a court to review a plan to make sure that it complies with "the applicable provisions of this title. Baird, The Elements of Bankruptcy at Revoking the Order of Confirmation The order confirming a plan of reorganization is an appealable order.
If there is no fraud, the order cannot be revoked: On request of a party in interest at any time before days after the date of the entry of the order of confirmation, and after notice and a hearing, the court may revoke such order if and only if such order was procured by fraud. Procedure for Revocation Section affects the rules of procedure by constraining the power of the court to revoke a confirmation order as a form of relief from a judgment or order under Federal Rule of Civil Procedure 60 b. The day limitation is implemented at Federal Rule of Bankruptcy Procedure , which provides in pertinent part: Rule 60 F. The Meaning of "Procured by Fraud" Since the Congress did not define what constitutes "procured by fraud" for purposes of revoking confirmation, the question is left to judicial construction.
Bankruptcy Act of Several sections of the former Bankruptcy Act permitted revocation of confirmation of various types of plans, all of which used essentially the same language. Bankruptcy Code of Congress did not work a major change of pre-Code law when it enacted section of the Bankruptcy Code. Intent Under the Bankruptcy Code, as was settled under the Bankruptcy Act, fraudulent intent is required before revocation is warranted.
Fraud on the Court as a Species of "Procured by Fraud" Fraud is a broad and ill-defined concept that encompasses fraud by the parties which is sometimes subdivided into extrinsic and intrinsic fraud and fraud on the court. The failure to disclose to the court the true authorship justified remedial action years later: [T]ampering with the administration of justice in the manner indisputably shown here involves far more than an injury to a single litigant. It is a wrong against the institutions set up to protect and safeguard the public, institutions in which fraud cannot complacently be tolerated consistently with the good order of society. Surely it cannot be that preservation of the integrity of the judicial process must always wait upon the diligence of litigants.
The public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpless victim of deception and fraud. Participation by an Officer of the Court Behind most frauds on the court lurks an officer of the court. Professor Moore opines that it was counsel's role in Hazel-Atlas Glass that made the use of the manufactured evidence a true fraud on the court: [A]n attorney of Hartford was implicated in perpetrating the fraud.
We believe that this is important, for, while an attorney should represent his client with singular loyalty, that loyalty obviously does not demand that he act dishonestly or fraudulently; on the contrary his loyalty to the court, as an officer thereof, demands integrity and honest dealing with the court. And when he departs from that standard in the conduct of the case he perpetrates a fraud upon the court. Materiality of the Defective Disclosure Regarding Whitehead We now turn to the materiality of the debtor's failure to disclose Whitehead's federal indictment and the WEI bankruptcy. Fraud on the Court at Confirmation Hearing In order to find a fraud on the court in this case, it must be demonstrated that an officer of the court perpetrated a fraud, with fraudulent intent, that impaired the court's ability to perform its impartial adjudicatory responsibilities.
Perpetrating a Fraud It is uncontested that both Michelson and his counsel knew that the representations in the disclosure statement about Whitehead's qualifications did not disclose the true status of Whitehead's company. Intent The violation by officers of the court of a duty to disclose material facts constitutes fraud if the officers know the facts, know or should know that the facts are material, and do not disclose them. Impairing the Adjudication Process The final element of fraud on the court by an officer of the court is that the court's ability to perform its duty to make an impartial adjudication must have been impaired.
Revocation of an Order of Confirmation Having concluded that there was a fraud on the court that was material to confirmation, the order confirming the plan of reorganization must be revoked. NOTES  This counsel substituted in for defendant after this motion was fully briefed and is not the counsel whose actions are described in this opinion. What will your duties include? Yes, there is. What is that understanding? Approximately five years. Are there any plans should Mr. In his recent State of the Union Address the President had this part right. New Innovations create the opportunity for high paying jobs and education fills them. At the heart of all of this as noted by President Lincoln is the United States patent system.
Companies both large and small will not create these jobs nor invest their time, money, and resources into uncertainty. Investment in these job creating new technologies requires that all parties are motivated to invest their own time and resources into developing them and that they will then be rewarded with the certainty that only a certificate of intellectual property rights a patent can convey. The United States patent system with its origins in the constitution of the United States has now stood for more than two centuries as a guiding light to the rest of the world.
But, it is a rapidly changing world and the United States, without hyperbole, is in serious danger of being left behind. Looking inward the damage to the United States economy including the failures to have job formation from a U. And now for the good news. No one has their hand out. No one is asking Congress for money. No one is asking to place one more burden on the American tax payer. All that is required at this time is to give the U. For example, first to invent versus first to file is the proverbial tempest in a teacup smaller than a teapot. All sound and fury signifying nothing.
The low cost and ease of filing a provisional patent application a placeholder for the first to invent should render any discussion of fairness moot. I believe that first to file is both fair and beneficial to all inventors; and is an important change to correctly position the U. Though late in this letter, by way of introduction, my name is Gary Michelson. I have some issued United States Patents and at last count over issued or pending patent applications throughout the world. Millions of Americans have benefited from my inventions which have included new procedures, implants, and surgical instruments that have made spinal surgery faster, safer, more effective and less expensive. Many jobs were created in the manufacturing and sale of these inventions.
The productivity of those who benefited from these innovations was also improved. In some instances people who were in wheelchairs collecting disability payment s were restored to a level of function where they were able to leave their wheelchairs behind and return to work. Finally I am an independent inventor who has greatly benefited from the United States patent system. I support the pending patent legislation before you and would urge you to do the same. Gary Michelson, M. Originally from Philadelphia, he worked to put himself through college, and later, through medical school. Disappointed with the low success rates of spinal surgery at that time, he spent decades developing implants, surgical procedures, and instruments to carry out those procedures.
He is among the most prolific inventors in the history of medicine, and the sole named inventor of more than patents. Tags: abraham lincoln , Authors , Capitol Hill , fee diversion , fee setting authority , first to file , Gary Michelson , Patent Reform , president lincoln. Read more. To understand, you have to read the statutory language, not just read the section title.
That part is irrelevant. Inventors lose the chance to think, to make good decisions, to test their inventions, to prepare good patent applications. There have been two studies with empirical data and one of these papers references a third empirical study by Dr. Ron Katznelson. Both show that Dr. Michelson is wrong. The first is S. Lo and D. They obtained extensive economic and patent filing data to conclude as follows—. To understand how such a policy change may affect U. However, the new patent regime seemed to have a small adverse effect on Canadian domestic-oriented industries. The policy shift also appeared unfavorable to independent inventors and small businesses , and it channeled inventive activity towards large corporations.
Patent Reform Act. The U. In addition, as independent inventors and small firms rarely have comparable resources to compete with large corporations in the race to the Patent Office, a switch to a first to file system contradicts the very essence of the longstanding U. More importantly, independent inventors and small firms have played an important role in the U. The PTO will be confronted with 50, to , more applications per year, less carefully written— an examination nightmare. We also reported Dr.
The cost is attorney fees and inventor time. Anyone that only sees the small filing fees is not dealing with reality. The present and previous management had no interest in the needs of small entities and were hostile to us. I gather Mr. Michelson has never, or at least recently, participated in patent prosecution. Had he, he would know better. As above, those of us intimately familiar with the present PTO management are distrustful. Based on rules set by PTO management in areas such as reexamination, we have experience first hand the abuses PTO management is capable of. Consider the rules the PTO proposed to enact just recently concerning matters such as limitations on continuations.
An inventor was forced to sue the PTO to stop them. Their aim, many of us are convinced, is to shoot and sink us. We disagree strongly with Mr. In fact, this bill will do nothing to help small entities. What it will do is help large corporations maintain their monopolies and kill their small entity and startup competitors which is exactly what they intended it to do and with them the jobs they would have created. According to recent studies by the Kauffman Foundation and economists at the U. Michelson is a great example of a successful independent inventor and should be praised for his contributions and for the cures his skill as a surgeon have provided.
Alas his great success and subsequent wealth have isolated him from the obstacles and problems start-ups and other independent inventors experience everyday. Inventors need certainty that no obstacles will stop them from obtaining a patent they can use to underpin the investor funded start-up the invention will promote. At the same time such inventors should not be penalized for having more then two or three patents but rewarded for every basic broad invention they create by recognition from the USPTO awards and medals for inventors only along with further fee reductions.
It should be recognized that basic inventions do best at sprouting major new industries but frequently do little to reward the inventor. A good example I know all too well is the touch screen key component of the iPhone and iPad and most laptops. This invention, sadly has been in the public long before it became popular and profitable. Important perhaps even key to present day technology success in the phone and computer field — a basic invention whose inventors should be encouraged not depressed by the failure of their invention to financially benefit anyone other then Steve Jobs.
I note that it took MIchelson 16 years to prosecute one of his most recent patents and has had a number of patents issue over the last several months -good for him. However, few small entities are in a position to wait that long for their patents. I suppose having considerable cash reserves tend to make one more tolerant and forgiving. Then too, perhaps the PTO is more apt to issue patents to parties who have notoriety or are well funded or connected. Either way, Michelson is out of touch with present conditions for the vast majority of small entities.
What gives here? I know you disagree with Dr. Michelson, but saying that he lacks familiarity with the realities of the patent system is way over the top. If anyone is familiar with the patent system it is Dr. Michelson is correct when he talks about the low cost associated with filing provisional patent applications. I have been over and over this many times with many people.These situations may be Mr. Michelsons Argumentative Analysis verified Mr. Michelsons Argumentative Analysis Fig. Braten Apparel Corp. Download Free PDF.