A Creditor Strategy to Pre-Empt S.D.N.Y. Venue Written by: tary petition was properly venued in William McGrane About the Author Tennessee, and (2) under Rule 1014(b) of the Federal Rules of Bankruptcy Trepel McGrane Greenfield LLP William McGrane is a senior partner Procedure, it (the Tennessee bankrupt- San Francisco in the San Francisco office of Trepel cy court) could consolidate the later- wmcgrane@tmcglawlcom McGrane Greenfield LLP. filed Kentucky voluntary case with n Courting Failure,1 Prof. Lynn the earlier-filed Tennessee involuntary Lopucki accuses the federal judi- entity that is the subject of such case in Tennessee, thereby stripping ciary of conducting a venal intra- case have been located for the I the Kentucky bankruptcy court of any district competition for large chapter [180] days immediately preced- jurisdiction, all without the consent of 11 cases by pandering to what he dis- ing such commencement, or for either the debtor or the Kentucky bank- missively calls “case placers.” This a longer portion of such [180]- ruptcy court.9 All of which wound up article takes the view that the nature day period than the domicile, leaving the decision as to where to lay and effect of the intra-district competi- residence, or principal place of venue in In re Lamb with the credi- tion for large chapter 11 cases needs no business, in the United States, tors—not with the debtor—despite the further exposition beyond what Prof. or principal assets in the United debtor’s concerted effort to lay venue LoPucki, his supporters and/or his crit- States, of such person were locat- in a different district. ics have provided.2 ed in any other district; or (2) in First substitute, say, the Northern Rather, and in lieu of just complain- which there is pending a case District of California for the Eastern ing about the weather, this article sug- under title 11 concerning such District of Tennessee. Then substitute gests the unsecured creditors’ bank- person’s affiliate, general partner the Southern District of New York for ruptcy bar (which is largely regional in or partnership.5 the Western District of Kentucky. Then, nature) actually do something about it.3 In a recent Texas case, In re Premier strictly as a thought experiment, imag- Put another way, this article suggests General Holdings Ltd.,6 a debtor was ine the impact of applying In re Lamb that unsecured creditors’ bankruptcy made the subject of an involuntary and Rule 1014(b) to those two hotbeds lawyers can (and should) use involun- bankruptcy petition on Feb. 19, 2010, of corporate insolvency in a manner tary bankruptcy to escape certain highly which was followed by a voluntary politicized bankruptcy venue provisions, which routinely enrich bankruptcy law- yers in the Southern District of New York at the direct expense of bankruptcy Feature lawyers practicing in less glamorous fed- eral districts throughout the rest of the designed to shift the balance of power United States.4 petition filed on March 17, 2010. Both between the East and West Coasts when proceedings were filed in the Western it comes to laying venue for large chapter Involuntary Bankruptcy District of Texas, which was a proper 11 cases. Once finished with that exer- venue under § 1408. The principal issue as a Venue-Selection Device cise, you will then grasp the message By virtue of its not distinguishing presented was the legal effect of a vol- that this article seeks to convey (i.e., that between bankruptcy cases commenced untary petition on an earlier filed invol- there is no good reason for the unsecured under §§ 301, 302 and 303, 28 U.S.C. untary petition, which the bankruptcy creditors’ bankruptcy bar to assume they § 1408 allows creditors to file an invol- court determined was tantamount to a are entirely helpless when it comes to the untary petition anywhere a debtor might confession of judgment in the earlier often-critical issue of where best to lay properly choose to file a voluntary peti- filed involuntary case.7 venue in order to both protect their cli- tion. Thus: In reaching this conclusion, the ents’ rights as well as to otherwise pro- [A] case under title 11 may be bankruptcy court engaged in an vide themselves with a forum conveni- commenced in the district court extended discussion of the interplay ens within which to litigate). This article for the district—(1) in which the between first filed involuntary peti- will now explore the risks and rewards domicile, residence, principal tions and later-filed voluntary peti- of involuntary bankruptcy, factoring in place of business in the United tions, citing, inter alia, In re Lamb,8 venue considerations that are normally States, or principal assets in the which was a case where the bank- left out of the calculus that precedes United States, of the person or ruptcy court first held that (1) a later filing an involuntary petition against a 1 filed voluntary petition in the Western See Lynn M. LoPucki, Courting Failure: How Competition for Big Cases large corporate debtor. Is Corrupting the Bankruptcy Courts (University of Michigan Press, 4th District of Kentucky did not strip an ed. 2008). Prof. Lopucki’s harsh conclusions about what makes federal judges of varying stripes act the way they do in large bankruptcy cases Eastern District of Tennessee bank- is questioned, inter alia, by Michael St. James in his article, “Why Rare and Risky Bad Things Happen in Large Chapter 11 Cases: Some Thoughts about ruptcy court of jurisdiction to deter- According to statistics available Courting Failure,” 7 Tenn. J. Bus. L. 169 (2005). mine that an earlier filed involun- 2 See http://lopucki.law.ucla.edu/tables_and_graphs/users_table.pdf. from the Administrative Office of the This website sets forth Prof. Lopucki’s compilation of all “Published 5 Emphasis added. The alternative “principal assets in the United States” U.S. Courts, the number of involuntary and Posted Studies Using UCLA-LoPucki [Courting Failure] Bankruptcy standard is by far the most flexible test available to petitioning creditors. Research Database Data [as of] May 2010.” For a further discussion, visit www.tmcglaw.com/capturingfailure/v.html. 9 3 With apologies to Charles Dudley Warner. See http://en.wikipedia.org/ Id. at 691. For a discussion of other cases and commentators endorsing 6 In re Premier General Holdings Ltd., 427 B.R. 592 (Bankr. W.D. Tex. 2010). wiki/Charles_Dudley_Warner. In re Lamb’s approach to the right of the bankruptcy court in the first 7 Id. at 599-600. 4 All further statutory references are to the Bankruptcy Code [11 U.S.C. filed involuntary case to determine venue, visit www.tmcglaw.com/ 8 In re Lamb, 40 B.R. 689 (Bankr. E.D. Tenn. 1984). § 101 et. seq.], unless otherwise indicated. capturingfailure/ix.html.

46 June 2011 ABI Journal bankruptcy cases filed each year is quite Whether it winds up being dis- liability if they do not act properly— small.10 For example, out of 688,021 missed or not, any involuntary case may there is still a simple truth at work total combined chapter 7 and 11 filings ultimately be determined to have consti- here. According to its own 10-Qs, in 2008, only 760, or approximately one tuted what § 303 characterizes as a “bad General Motors Corp. was a perfectly tenth of one percent, were commenced faith” filing, a term that is otherwise not fine candidate for a proper involuntary by an involuntary petition.11 The likely defined by statute. Because being found that could as easily have been brought explanation for the rarity of involuntary guilty of having made a “bad faith” fil- (and made to stick) in the Eastern filings is a widespread perception on ing under § 303 can result in sanctions District of Michigan.22 While Chrysler the part of bankruptcy practitioners that being levied against both client and was privately run by the time it filed its commencing such cases is very risky counsel, the prospect of such sanctions voluntary, its financial woes were well behavior indeed. But is it? can (and should) keep otherwise risk- known.23 The Southern District of New To answer that question, we begin adverse bankruptcy practitioners who York was by no means the inevitable by examining the provisions of the are considering filing involuntary peti- resting place for either of those mega Bankruptcy Code governing involuntary tions up late into the night.18 cases, even with as potent a case-plac- bankruptcy: Sections 303 and 305. Under 19 er as the White House deciding where § 303, an involuntary petition may be The Way We Live Now those two debtors should file. filed against anyone who may be a volun- As the database assembled by Prof. The simple truth is that unsecured tary debtor under chapter 7 or 11, except LoPucki establishes beyond any reason- creditors in large cases do not have to pay farmers or noncommercial corporations.12 able doubt, the largest chapter 11 cases “New York rates” and otherwise subject If a debtor was known by the peti- are being filed in wildly disproportion- themselves to the continued excesses of tioning creditor(s)—or should have been ate numbers in the Southern District failed managements and their financial known by the petitioning creditor(s)—to of New York. As noted, supra, § 1408 and legal advisers, and/or secured lend- have had more than 12 creditors before indisputably allows creditors to file an ing institutions, all of whom now flock the involuntary petition was filed, there involuntary petition anywhere that a to Manhattan on account of the widely should be a minimum of three petition- debtor might properly choose to file a perceived cronyism between such case ing creditors holding noncontingent voluntary petition. Most crucially, the placers and the bankruptcy bench in the and undisputed debts totaling not less author’s research discloses not a single Southern District of New York. than $14,425 included in the petition.13 case where petitioning creditor(s)’ desire Rather, 10-Qs and other public docu- Otherwise, just a single creditor hold- to use § 303 in conjunction with § 1408 ments routinely confess when companies ing noncontingent and undisputed debts to seize the high ground for venue pur- are not paying their bills as they come totaling not less than $14,425 can prop- poses has ever been held to be an indi- due. Assembling multiple trade credi- 20 erly file an involuntary petition. cia of § 303 bad faith. To the contrary, tors who are collectively owed more than Once an involuntary petition is filed, in one case a Texas bankruptcy court $14,425 is just not much of a challenge. Feature and again under § 303, it may then be landed a big chapter 11 case filed by a Most importantly, and as any reader opposed. In such a case, and under nontraditional case placer (i.e., a credi- of Prof. Milton Regan’s Eat What You § 305, the bankruptcy court may choose tor who used the voting rights assigned Kill knows, following the criminal to abstain, thereby rendering the filing it as partial security for its debt to elect conviction of Milbank Tweed partner nugatory.14 Whether abstention may a board that chose Fort Worth as the ini- John Gellene for bankruptcy fraud in result in an award of sanctions against tial venue for a bankruptcy case that was the Eastern District of Wisconsin, the the petitioning creditors is the subject of related to two already-pending Delaware mere prospect of their having to ven- conflict in the case law.15 bankruptcy cases by the debtor’s affili- ture outside the Southern District of Assuming that the bankruptcy court ates). Not a whisper of complaint about New York now instills a deep fear in does not choose to abstain from exer- this hotly disputed machination was Wall Streeters engaged in reorganizing cising its jurisdiction over a contested voiced by an apparently only-too-grate- large companies under chapter 11.24 involuntary case, the next issue will be ful-for-something-big-time-to-do Texas After the Panic of 2008 and the con- 21 whether an order for relief should be bankruptcy court. sequent onset of the Great Recession, entered.16 If not, the unsuccessful peti- Thus, while all petitioning what more worthy goals could there be tioning creditor(s) may wind up being creditor(s) should always strive to file than intimidating Wall Street while at found liable for the putative debtor’s only perfectly proper involuntary fil- the same time keeping New York bank- attorney’s fees and costs.17 ing petitions conforming to all of the ruptcy lawyers from continuing to get standards governing such filings—and 10 Administrative Office of the U.S. Courts, Judicial Facts and Figures, Multi- such an inordinate share of pennies Year Statistical Compliations on the Federal Judiciary’s Caseload through every sensible bankruptcy practitioner 25 Q Fiscal Year 2008, Table 7.2 (2009), available at www.uscourts.gov/ from dead eyes? uscourts/Statistics/JudicialFactsAndFigures/2008/alljudicialfactsfigures.pdf. should beware of potential bad-faith 22 For a discussion of the GM 10-Q that the author reviewed, visit www. 11 Id. 17 tmcglaw.com/capturingfailure/xxii.html. 12 For a discussion of how bankruptcy laws have historically provided For a discussion of how some courts have held or at least suggested 23 For a discussion of the Chrysler materials the author reviewed, visit creditors with the opportunity to file an involuntary bankruptcy petition that when an involuntary petition is dismissed there is a rebuttable pre- www.tmcglaw.com/capturingfailure/xxiii.html. against most debtors under certain clearly defined circumstances, visit sumption in favor of the debtor that fees and costs should be awarded, 24 Milton C. Regan, Jr., Eat What You Kill: The Fall of a Wall Street Lawyer www.tmcglaw.com/capturingfailure/xii.html. visit www.tmcglaw.com/capturingfailure/xvii.html. 18 (University of Michigan Press, 2006 Ed.). See also Corrine Cooper and 13 For a discussion of how to determine whether a claim is contingent as For a discussion of the spectrum of what the federal courts consider Catherine E. Vance, editors, Attorney Liability in Bankruptcy (American to liability or the subject of a bona fide dispute as to liability or amount, “bad faith” filings under § 303, visit www.tmcglaw.com/capturingfail- Bar Association, 2006), containing Ronald R. Peterson, Criminal Liability visit www.tmcglaw.com/capturingfailure/xiii.html. ure/xviii.html. 19 for the Bankruptcy Practitioner, at chapter 16 thereof, wherein Peterson 14 For a discussion of the statutory authority allowing a court to abstain, With apologies to Anthony Trollope. See http://en.wikipedia.org/wiki/ discusses what happened to Gellene after he employed ethical mores visit www.tmcglaw.com/capturingfailure/xiv.html. The_Way_We_Live_Now. 20 learned on Wall Street in a Wisconsin bankruptcy case, along with a 15 Compare In re Kidwell, 158 B.R. 203 (Bankr. E.D. Cal. 1993) (allowing Proving a negative is, of course, never easy. For a discussion of the host of other lesser examples of criminal behavior by bankruptcy practi- award of attorneys’ fees and costs) to Koffman v. Osteoimplant Tech. Inc., Lexis search terms that the author employed in an attempt to uncover tioners prosecuted by various U.S. Attorney’s Offices, almost all outside 182 B.R. 115 (D. Md. 1995) (after bankruptcy court abstains from jurisdic- discussion by the federal courts respecting the possible interplay the Southern District of New York. tion of involuntary case, it cannot award damages or impose sanctions). between the use by creditors of involuntary bankruptcy as a venue- 25 See “Taxman” by George Harrison, the lyrics of which song include 16 For a discussion of how the petitioning creditors must also establish selection device and bad faith under § 303, visit www.tmcglaw.com/ the following verse: “And my advice for those who’ve died: Declare the that the debtor is generally not paying its debts, visit www.tmcglaw. capturingfailure/xx.html. 21 pennies on your eyes. Cause I’m the taxman. Yeah, I’m the taxman.” com/capturingfailure/xvi.html. In re Interlink Home Health Care Inc., 283 B.R. 429 (Bankr. N.D. Tex. 2002). Copyright 2011 American Bankruptcy Institute. ABI Journal Please contact ABI at (703) 739-0800 for reprint permission. June 2011 47

EXHIBIT 2 Published and Posted Studies Using UCLA-LoPucki Bankruptcy Research Database Data May 2010 Author Title Citation Latest Year 12 American Bankruptcy Institute Law A. Mechele Dickerson The Many Faces of Chapter 11: A Reply to Professor Baird 2004 Review 109

4 Brooklyn Journal of Corporate, Financial Adam J. Levitin Bankruptcy Markets: Making Sense of Claims Trading 2010 & Commercial Law 64

Market Value of Life Insurance Liabilities Under Chapter 11 Bankruptcy An Chen 59 AENORM 45 2008 Procedure

Default Risk, Bankruptcy Procedures and the Market Value of Life Insurance 40 Insurance: Mathematics and An Chen & Michael Suchanecki 2007 Liabilities Economics 231

Andrew E. Kern Board Changes Around Bankruptcy Working Paper n/a Barry Adler, Vedran Capkun, & NYU Working Paper No. CLB-06-032; May Destruction of Value in the New Era of Chapter 11 2009 Lawrence A. Weiss 07, 2009

Bernard S. Black, Brian R. Cheffins, & Outside Director Liability 58 Stanford Law Review 1055 2006 Michael Klausner

Commercial Aviation: Bankruptcy and Pension Problems Are Symptoms of Bradley D. Belt GAO Reports; October 3, 2005 2005 Underlying Structural Issues: GAO-05-94.

Charles Silver We're Scared to Death: Class Certification and Blackmail 78 New York University Law Review 1357 2003

Firm Decision Making Under Financial Distress: A Study of U.S. Air Fares and Christian Hofer Dissertation; July 8, 2007 2007 an Analysis of Inventories in U.S. Manufacturing Industries

Christian Hofer, Martin E. Dresner, & The Impact of Airline Financial Distress on US Air Fares: A Contingency 45 Transportation Research Part E: 2009 Robert J. Windle Approach Logistics and Transportation Review 238

83 The American Bankruptcy Law Journal Chrystin Ondersma Employment Patterns in Relation to Bankruptcy 2009 237

Claire Crutchley & Keven Yost Key Employee Retention Plans in Bankruptcy Working Paper; August 2008 2008

Daniel J. Bussel Textualism's Failures: A Study of Overruled Bankruptcy Decisions 53 Vanderbilt Law Review 887 2000

An Empirical Analysis of Bond Recovery Rates: Exploring a Structural View of FEDS Working Paper No. 2005-10; May Daniel M. Covitz & Song Han 2005 Default 30, 2005

Daniel M. Covitz, Song Han, and Beth FEDS Working Paper No. 2006-27; April Are Longer Bankruptcies Really More Costly? 2008 Anne Wilson 04, 2008

Page 1 Published and Posted Studies Using UCLA-LoPucki Bankruptcy Research Database Data May 2010 Author Title Citation Latest Year

David A. Skeel, Jr. European Implications of Bankruptcy Venue Shopping in the U.S. 54 Buffalo Law Review 439 2006

17 May American Bankruptcy Institute David P. Bart & Scott Peltz Rethinking the Concept of "Success" in Bankruptcy and Corporate Recovery 1998 Journal 1

12 American Bankruptcy Institute Law Douglas G. Baird The New Face of Chapter 11 2004 Review 69

Douglas G. Baird & Donald S. Enterprise Valuation and the Puzzling Persistence of Relative Priority Out- Law and Economics Workshop; 2004 Bernstein comes in Corporate Reorganization December 15, 2004

Douglas G. Baird & Robert K. 154 University of Pennsylvania Law Private Debt and the Missing Lever of Corporate Governance 2006 Rasmussen Review 1209

Douglas G. Baird & Robert K. Chapter 11 at Twilight 56 Stanford Law Review 673 2003 Rasmussen

Douglas G. Baird, Arturo Bris, & Ning Yale ICF Working Paper No. 05-29; The Dynamics of Large and Small Chapter 11 Cases: An Empirical Study 2007 Zhu September 21, 2009

Bankruptcy Decision Making: An Empirical Study of Continuation Bias in Small- Edward R. Morrison 50 The Journal of Law & Economics 381 2007 Business Bankruptcies

Timbers of Inwood Forest, the Economics of Rent, and the Evolving Dynamics BANKRUPTCY LAW STORIES, Robert K. Edward R. Morrison 2008 of Chapter 11 Rasmussen, ed., Foundation Press, 2007

Edward Xuejun Li, K. Ramesh, & Min The Role of Newswires in Screening and Disseminating Value-Relevant Working Paper; January 11, 2010 2010 Shen Information in Periodic SEC Reports

Chocolate, Flowers, and § 363(B): The Opportunity for Sweetheart Without 23 Emory Bankruptcy Developments Elizabeth B. Rose 2006 Chapter 11 Protections Journal 249

Elizabeth Warren & Jay Lawrence The success of Chapter 11: A Challenge to the Critics 107 Michigan Law Review 603 2009 Westbrook Ericka Norman, Clarence Tan, Kuldeep Kumar, Violet Torbey, & Chapter 11 Return Prediction Models and Software Reviews n/a Dennis Drew All's Fair in Love, War & Bankruptcy? Corporate Governance Implications of 11 Stanford Journal of Law, Business, and Ethan Bernstein 2006 CEO Turnover in Financial Distress Finance 298

Federico Ciliberto & Carola Schenone Bankruptcy and Product-Market Competition: Evidence from the Airline Industry Working Paper; August 11, 2009 2009

Federico Ciliberto & Carola Schenone Are the Bankrupt Skies the Friendliest? Working Paper; January 19, 2010 2010

Page 2 Published and Posted Studies Using UCLA-LoPucki Bankruptcy Research Database Data May 2010 Author Title Citation Latest Year

Gerard McCormack Corporate Rescue Law: An Anglo-American Perspective [Book] Edward Elgar Publishing 2008

Gerard McCormack Jurisdictional Competition and Forum Shopping in Insolvency Proceedings 68 The Cambridge Law Journal 169 2009

Gregory R. Stone & S. Ghon Rhee Why CEOs File Bankruptcy in Delaware Working Paper; May 31, 2009 2009

Harold F. Tipton & Micki Krause Information Security Management Handbook, Volume 2 [Book] CRC Press 2007

Harvey R. Miller Chapter 11 Reorganization Cases and the Delaware Myth 55 Vanderbilt Law Review 1987 2002

Does Bankruptcy Protection Harm the Airline Industry? Empirical Study on Hwa Ryung Lee Working Paper; April 7, 2009 2009 Bankruptcy and Low Cost Carrier Growth in the Airline Industry

Hwa Ryung Lee Bankruptcy and Low Cost Carrier Expansion in the Airline Industry Working Paper; September 28, 2009 2009

Corporate Groups and Crossborder Insolvencies: A Canada - United States 7 Fordham Journal of Corporate & Jacob S. Ziegel 2002 Perspective Financial Law 367

James D. Cox, Randall S. Thomas, & There Are Plaintiffs and ... There Are Plaintiffs: An Empirical Analysis of 61 Vanderbilt Law Review 355 2008 Lynn Bai Securities Class Action Settlements

12 American Bankruptcy Institute Law James J. White Death and Resurrection of Secured Credit 2004 Review 139

Jay Lawrence Westbrook & Elizabeth U of Texas Law, Public Law Research Chapter 11: Conventional Wisdom and Reality 2007 Warren Paper No. 125; November 01, 2007

Commercial Aviation: Bankruptcy and Pension Problems Are Symptoms of JayEtta Z. Hecker [Book] DIANE Publishing Company 2006 Underlying Structural Issues

Jialan Wang The Role of Human Capital in Corporate Bankruptcy Working Paper; November 24, 2009 2009

John F. Crean Credit Risk, Default Loss, and the Economics of Bankruptcy Working Paper 354; March 30, 2009 2009

John Harry Evans III, Shuqing Luo, & AAA 2009 Management Accounting Bankruptcy, CEO Retention and the Evolution of Contractual Practices 2008 Nandu J. Nagarajan Section (MAS) Meeting Paper

Understanding Failure: Examiners and the Bankruptcy Reorganization of Large Jonathan C. Lipson 84 American Bankruptcy Law Journal 1 2010 Public Companies

Page 3 Published and Posted Studies Using UCLA-LoPucki Bankruptcy Research Database Data May 2010 Author Title Citation Latest Year The Future of Mass Tort Claims: Comparison of Settlement Class Action to South Carolina Law Review Joseph F. Rice & Nancy Worth Davis 1999 Bankruptcy Treatment of Mass Tort Claims Winter, 1999 L Rev 405 Kai Li, Wei Jiang, & Wei Wang Hedge Funds in Chapter 11 Working Paper; March 13, 2010 2010

Select Advisory Committee on Business Reorganization (SABRE): Annotated Karen M. Gebbia-Pinetti 57 Business Lawyer 245 2001 List of Resources

Review: An Efficiency-Based Explanation for Current Corporate Reorganization Kenneth Ayotte & David A. Skeel, Jr. 73 University of Chicago Law Review 425 2006 Practice

Kerry O'Rourke Valuation Uncertainty in Chapter 11 Reorganizations 2005 Columbia Business Law Review 403 2005

Kevin E. Davis Law-Making in Small Jurisdictions 56 University of Toronto Law Journal 151 2006

Empty Manipulation: Bankruptcy Procedure Rule 2019 and Ownership Kevin J. Coco 2008 Columbia Business Law Review 610 2008 Disclosure in Chapter 11 Cases

Kuldeep Kumar, Clarence Tan, Ericka Using Soft Computing Techniques to Create a Hybrid Model for Predicting Cima 2004 Proceedings, 12-14 July 2004 2004 Norman, Violet Torbey, & Dennis Chapter 11 Return to Shareholders Drew When is Bad News Really Good News? The Case of Strategic vs. Non-Strategic Luis Coelho & Richard J. Taffler Working Paper; June 26, 2008 2008 Bankruptcies

Luis Coelho & Richard J. Taffler Gambling on the Stock Market: The Case of Bankrupt Companies Working Paper; November 03, 2009 2009

Courting Failure: How Competition for Big Cases Is Corrupting the Bankruptcy Lynn M. LoPucki [Book] University of Michigan Press 2006 Courts

Lynn M. LoPucki The Irrefutable Logic of Judgment Proofing: A Reply to Professor Schwarcz 52 Stanford Law Review 55 1999

Lynn M. LoPucki Book Summary: Courting Failure 54 Buffalo Law Review 325 2006

Lynn M. LoPucki Where Do You Get Off? A Reply to Courting Failure's Critics 54 Buffalo Law Review 511 2006

Can the Market Evaluate Legal Regimes? A Response to Professors Lynn M. LoPucki 54 Vanderbilt Law Review 331 2001 Rasmussen, Thomas, and Skeel

The Nature of the Bankrupt Firm: A Response to Baird and Rasmussen's The Lynn M. LoPucki 56 Stanford Law Review 645 2003 End of Bankruptcy

Page 4 Published and Posted Studies Using UCLA-LoPucki Bankruptcy Research Database Data May 2010 Author Title Citation Latest Year

Lynn M. LoPucki A Team Production Theory of Bankruptcy Reorganization 57 Vanderbilt Law Review 741 2004

79 The American Bankruptcy Law Journal Lynn M. LoPucki Universalism Unravels 2005 143

82 Washington University Law Quarterly Lynn M. LoPucki The Myth of the Residual Owner: An Empirical Study 2004 1341

Lynn M. LoPucki Cooperation in International Bankruptcy: A Post-Universalist Approach 84 Cornell Law Review 696 1999

Lynn M. LoPucki Court-System Transparency 94 Iowa Law Review 481 2009

Lynn M. LoPucki The Case for Cooperative Territoriality in International Bankruptcy 98 Michigan Law Review 2216 2000

Lynn M. LoPucki & Joseph W. Determinants of Professional Fees in Large Bankruptcy Reorganization Cases, 1 Journal of Empirical Legal Studies 111 2004 Doherty The

Lynn M. LoPucki & Joseph W. Bankruptcy Fire Sales 106 Michigan Law Review 1 2007 Doherty

Lynn M. LoPucki & Joseph W. Bankruptcy Verite 106 Michigan Law Review 721 2008 Doherty

Lynn M. LoPucki & Joseph W. Professional Overcharging in Large Bankruptcy Reorganization Cases 5 Journal of Empirical Legal Studies 983 2008 Doherty

Lynn M. LoPucki & Joseph W. Why Are Delaware and New York Bankruptcy Reorganizations Failing? 55 Vanderbilt Law Review 1933 2002 Doherty

Lynn M. LoPucki & Joseph W. Delaware Bankruptcy: Failure in the Ascendancy 73 University of Chicago Law Review 1387 2006 Doherty

Lynn M. LoPucki & Joseph W. Rise of the Financial Advisors: An Empirical Study of the Division of 82 The American Bankruptcy Law Journal 2008 Doherty Professional Fees in Large Bankruptcies 141

Lynn M. LoPucki & Joseph W. 83 The American Bankruptcy Law Journal Routine Illegality in Bankruptcy Court, Big-Case Fee Practices 2009 Doherty 423

The Failure of Public Company Bankruptcies in Delaware and New York: Lynn M. LoPucki & Sara D. Kalin 54 Vanderbilt Law Review 231 2001 Empirical Evidence of a "Race to the Bottom"

Board of Governors of the Federal Mark Carey & Michael B. Gordy The Bank as Grim Reaper: Debt Composition and Bankruptcy Thresholds 2009 Reserve System; May 4, 2009

Page 5 Published and Posted Studies Using UCLA-LoPucki Bankruptcy Research Database Data May 2010 Author Title Citation Latest Year 78 The American Bankruptcy Law Journal Melissa B. Jacoby The Bankruptcy Code at Twenty-Five and the Next Generation of Lawmaking 2004 221

Why Bad Things Happen in Large Chapter 11 Cases: Some Thoughts about 7 Transactions: The Tennessee Journal of Michael St. James 2005 Courting Failure Business Law 169

Market Tsunami or Managerial Discretion: What Explains the Hazard of Mohammad M. Rahaman Working Paper; February 19, 2009 2009 Corporate Failure?

Be Careful What You Wish For, You Just Might Get It: The Effect on Chapter 11 Neill D. Fuquay 85 Texas Law Review 431 2006 Case Length of the New Cap on a Debtor's Exclusive Period to File a Plan

Nicolas Petrosky-Nadeau Credit, Vacancies and Unemployment Fluctuations Working Paper; December 1, 2009 2009

AFA 2009 San Francisco Meetings Paper; Qiang Kang & Oscar A. Mitnik Not So Lucky Any More: CEO Compensation in Financially Distressed Firms 2009 February 15, 2009

Qiang Kang & Oscar A. Mitnik CEO Power and Compensation in Financially Distressed Firms Working Paper; November 2009 2009

Responding to Threats of Bankruptcy Abuse in a Post-Enron World: Trusting the Rachael M. Jackson 2005 Columbia Business Law Review 451 2005 Bankruptcy Judge as the Guardian of Debtor Estates

12 American Bankruptcy Institute Law Ralph Brubaker & Kenneth N. Klee Resolved: The 1978 Bankruptcy Code has been a Success 2004 Review 273

Robert K. Rasmussen Empirically Bankrupt 2007 Columbia Business Law Review 179 2007

The Search for Hercules: Residual Owners, Directors, and Corporate 82 Washington University Law Quarterly Robert K. Rasmussen 2004 Governance in Chapter 11 1445

Robert R. Bliss & George G. Kaufman Financial Institutions and Markets: Current Issues in Financial Markets [Book] Palgrave Macmillan 2008

Unicitral's Model Law on Cross-Border Insolvency: A Workable Protection for 26 Brooklyn Journal of International Law Sara Isham 2001 Transnational Investment at Last 1177

Simultaneous Distress of Residential Developers and Their Secured Lenders: Sarah P. Woo Working Paper; September 17, 2009 2009 An Analysis of Bankruptcy and Bank Regulation

2 Insolvency and Restructuring Scott K. Brown Punching Your Ticket to the High-Speed International Insolvency Train 2008 International 23

Sergio Davalos, Fei Leng, Ehsan H. Bankruptcy Classification of Firms Investigated by the US Securities and Working Paper; September 01, 2009 2009 Feroz, & Zhiyan Cao Exchange Commission: An Evolutionary Ensemble Computing Model Approach Ehsan H Feroz & Zhiyan Cao

Page 6 Published and Posted Studies Using UCLA-LoPucki Bankruptcy Research Database Data May 2010 Author Title Citation Latest Year The Impact of Chapter 11 Bankruptcy Filing on Operating Performance of Public Simiao Zhou Working Paper; November 27, 2005 2005 U.S. Firms

Sreedhar T. Bharath, Venkatesh Fisher College of Business Working Paper The Changing Nature of Chapter 11 2009 Panchapagesan, & Ingrid M. Werner No. 2008-03-003; March 16, 2009

Stefano Bonini & Diana Boraschi Corporate Scandals, Capital Structure and Contagion Effect Working Paper; May 1, 2009 2009

Stefano Bonini & Diana Boraschi-Diaz Fraudulent Financing Working Paper; March 16, 2010 2009

14 American Bankruptcy Institute Law Stephen J. Lubben Choosing Corporate Bankruptcy Counsel 2006 Review 391

16 American Bankruptcy Institute Law Stephen J. Lubben Delaware's Irrelevance 2008 Review 267

82 The American Bankruptcy Law Journal Stephen J. Lubben Corporate Reorganization & Professional Fees 2008 77

Stephen J. Lubben No Big Deal: The GM and Chrysler Cases in Context 83 American Bankruptcy Law Journal 531 2009

Stephen J. Lubben Railroad Receivership and Modern Bankruptcy Theory 89 Cornell Law Review 1420 2004

13 Journal of Air Transport Management Stephen X.H. Gong Bankruptcy Protection and Stock Market Behavior in the US Airline Industry 2007 213

Stewart L. Weisman Need and Greed: The Story of the Largest Ponzi Scheme in American History [Book] Syracuse University Press 1999

12 (2) Journal of Entrepreneurial Finance Surendranath Jory & Jeff Madura Equity Offerings by Firms That Emerged from Bankruptcy 2007 and Business Ventures 1

5 (2) The International Journal of Banking Tareque Nasser & Benton E. Gup Insider trading and large Chapter 11 Bankruptcies in USA 2008 and Finance 1

Theodore Eisenberg & Lynn M. Shopping for Judges: An Empirical Analysis of Venue Choice in Large Chapter 84 Cornell Law Review 967 1999 LoPucki 11 Reorganizations

Tuan Samahon Are Bankruptcy Judges Unconstitutional? An Appointments Clause Challenge 60 Hastings Law Journal 233 2008

41 American Law & Economics Vedran Capkun & Lawrence A. Weiss Bankruptcy Resolution and the Restoration of Priority of Claims 2008 Association Papers 1

Page 7 Published and Posted Studies Using UCLA-LoPucki Bankruptcy Research Database Data May 2010 Author Title Citation Latest Year Are Firms on the Right Page with Chapter 11? An Analysis of Firm Choices that Vicki Bogan & Chad Sandler Working Paper; November 30, 2009 2009 Contribute to Post-Bankruptcy Survival

Viorel Milea An Ant System Implementation for Bankruptcy Prediction Working Paper; July 2005 2005

Report to the American Bankruptcy Institute: Prevalence of Substantive 16 American Bankruptcy Institute Law William H. Widen 2008 Consolidation in large Public Company Bankruptcies from 2000 to 2005 Review 1

Bankruptcy Policy, Legal Heritage, and Financial Development: An Agenda for 24 Emory Bankruptcy Developments Ziad Raymond Azar 2008 Further Research Journal 379

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EXHIBIT 3 Charles Dudley Warner - Wikipedia, the free encyclopedia http://en.wikipedia.org/wiki/Charles_Dudley_Warner

From Wikipedia, the free encyclopedia

Charles Dudley Warner (September 12, 1829 – October 20, 1900) was an American essayist, novelist, and friend of Mark Twain, with whom he co-authored the novel The Gilded Age: A Tale of Today.

1 Biography 2 Selected list of works 3 Other publications 4 References 5 External links Charles Dudley Warner, circa 1897

Warner was born of Puritan descent in Plainfield, Massachusetts. From the ages of six to fourteen he lived in Charlemont, Massachusetts, the scene of the experiences pictured in his study of childhood, Being a Boy (1877). He then moved to Cazenovia, New York, and in 1851 graduated from Hamilton College, Clinton, NY.

He worked with a surveying party in Missouri; studied law at the University of Pennsylvania; practiced in Chicago (1856–1860); was assistant editor (1860) and editor (1861–1867) of The Hartford Press, and after The Press was merged into The Hartford Courant, was co-editor with Joseph R Hawley; in 1884 he joined the editorial staff of Harper's Magazine, for which he conducted The Editors Drawer until 1892, when he took charge of The Editor's Study. He died in Hartford on October 20, 1900, and was interred at Cedar Hill Cemetery, with Charles Dudley Warner from Mark Twain as a pall bearer and Joseph Twichell officiating.[1] Who-When-What Book, 1900 Warner travelled widely, lectured frequently, and was actively interested in prison reform, city park supervision, and other movements for the public good. He was the first president of the National Institute of Arts and Letters, and, at the time of his death, was president of the American Social Science Association. He first attracted attention by the reflective sketches entitled My Summer in a Garden (1870; first published in The Hartford Courant), popular for their abounding and refined humour and mellow personal charm, their wholesome love of outdoor things, their suggestive comment on life and affairs, and their delicately finished style, qualities that suggest the work of Washington Irving. Charles Dudley Warner is known for making the famous remark "Everybody complains about the weather, but nobody does anything about it". This was quoted by Mark Twain in a lecture, and is still commonly misattributed to Twain.

Saunterings (descriptions of travel in eastern Europe, 1872)

1 of 3 6/10/2011 11:49 AM Charles Dudley Warner - Wikipedia, the free encyclopedia http://en.wikipedia.org/wiki/Charles_Dudley_Warner

BackLog Studies (1872) Baddeck, and That Sort of Thing (1874), travels in Nova Scotia and elsewhere My Winter on the Nile (1876) In the Levant (1876) In the Wilderness (1878) A Roundabout Journey, in Europe (1883) On Horseback, in the Southern States (1888) Studies in the South and West, with Comments on Canada (1889) Our Italy, southern California (1891) The Relation of Literature to Life (1896) The People for Whom Shakespeare Wrote (1897) Fashions in Literature (1902)

He also edited The American Men of Letters series, to which he contributed an excellent biography of Washington Irving (1881), and edited a large Library of the World's Best Literature.

Warner's other works include his essays:

As We Were Saying (1891) As We Go (1893)

And novels:

The Gilded Age: A Tale of Today (in collaboration with Mark Twain, 1873) Their Pilgrimage (1886) A Little Journey in the World (1889) The Golden House (1894) That Fortune (1889).

Annie A. Fields, Charles Dudley Warner (Garden City, New York, 1904) passim, A. B. Paine, Mark Twain (three volumes, New York, 1912) Brander Matthews, Aspects of Fiction (new edition, New York, 1902) Nook Farm: Mark Twain's Hartford Circle, by Kenneth R. Andrews. 288 pgs. Harvard UP, 1950. Has a lot on Warner, including a complete bib of his works. Biographical Sketch of Warner by T. R. Lounsbury, in the 15th volume of the 15-volume Collected Writings of Warner; Hartford, Conn: American Publishing Co., 1904. http://infomotions.com/etexts /gutenberg/dirs/3/1/1/3117/3117.htm

1. ^ "CHARLES DUDLEY WARNER" (http://www.cedarhillcemetery.org/Warner.htm) . Cedar Hill Cemetery. http://www.cedarhillcemetery.org/Warner.htm. Retrieved 2008-04-28.

Chisholm, Hugh, ed (1911). "Warner, Charles Dudley". Encyclopædia Britannica (Eleventh ed.). Cambridge University Press.

2 of 3 6/10/2011 11:49 AM Charles Dudley Warner - Wikipedia, the free encyclopedia http://en.wikipedia.org/wiki/Charles_Dudley_Warner

Charles Dudley Warner page with links to his works available on the web. (http://www.wsu.edu /~campbelld/amlit/warner.htm) CHARLES DUDLEY WARNER by Mrs. James T. Fields. New York: McClure, Phillips, & Co., 1904. Contemporary Men of Letters Series. (http://www.public.coe.edu/~theller/fields/warner.html) Works by Charles Dudley Warner (http://www.gutenberg.org/author/Charles+Dudley+Warner) at Project Gutenberg Retrieved from "http://en.wikipedia.org/wiki/Charles_Dudley_Warner" Categories: American essayists | American novelists | 1829 births | 1900 deaths | People from Madison County, New York | Faculty of Art Students League of New York | Mark Twain | Hamilton College alumni | Burials at Cedar Hill Cemetery (Hartford, Connecticut)

This page was last modified on 6 March 2011 at 17:36. Text is available under the Creative Commons Attribution-ShareAlike License; additional terms may apply. See Terms of Use for details. Wikipedia® is a registered trademark of the Wikimedia Foundation, Inc., a non-profit organization.

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EXHIBIT 5 Capturing Failure - Footnote V http://www.tmcglaw.com/capturingfailure/v.html

by William McGrane Footnote V The alternative “principal assets in the United States” standard is by far the most flexible test available to petitioning creditors. The meaning of the term “principal assets” is not defined by the Bankruptcy Code (see In re Shelton, 2001 Bankr. Lexis 2213, *19 (Bankr. D. Idaho 2001) [holding that, as defined by Black’s Law Dictionary, the term “principal,” standing alone, means “[c]hief; leading; most important or considerable; primary …”]). Establishing a single place where a debtor’s principal assets reside is not always possible, however. Thus, In re Mid Atlantic Retail Group, Inc., 2008 Bankr. Lexis 790 (Bankr. M.D.N.C. 2008), a case where a debtor had widely scattered assets located in many different federal judicial districts, a North Carolina bankruptcy court said: The court does not believe that [section 1408] requires that assets be concentrated in one district for principal assets to be located in that district. Instead, the court believes that a debtor’s principal assets can be located in several different districts because “[t]he venue statute does not require that only the principal asset may support venue; rather, venue may be proper in a district where principal assets are located. Thus, a debtor may have more than one appropriate venue based upon more than one principal asset.” Id. at *8-9(quoting In re Ross, 312 B.R. 879, 889 (Bankr. W.D. Tenn. 2004). (Emphasis in original.)

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EXHIBIT 10 JUDICIAL FACTS AND FIGURES

Multi-Year Statistical Compilations on the Federal Judiciary's Caseload Through Fiscal Year 2008

Administrative Office of the U.S. Courts James C Duff, Director Compiled September 2009 INTRODUCfION

[udiaal Faas andFil!JffeS is a set of tables containing historical caseload data for the federal Judiciary for fiscal years 1990, 1995, 2000, and 2004 through 2008. This publication includes data on the u.s. courts of appeals, the u.s. district courts, and the u.s. bankruptcy courts. These tables are also available on the J-Net (http://jnet.ao.dcnlStatistics/ludicial Facts and and the uscourts.gov web sites / contents.html) in PDF or Excel format.

The sources for the data are Annual Repot ifthe Direaor: [udidal Businss ifthe Unued States Cams, Federal Cam Managmmt Statistus, and unpublished statistical tables. Specific data sources are noted on each table. Except where specifically stated otherwise, data were compiled from reports published for the fiscal years noted (i.e.,1995 data are from 1995 editions of]udicidBusinss ifthe UnuedStates Cams ). Sometimes minor revisions are made to data in subsequent publications. For example, data on pending cases for one year are frequently revised in the subsequent year's publication. 'When the fiscal year reporting period was changed in 1992 from the 12-month period ending June 30 to the 12- month period ending September 30, some filing data for fiscal year 1990 were revised and reported in]udicid Businss ifthe Unued.State: Cams for 1991. Several tables in this report include data that reflect those revisions.

[udidal Faas andFil!JffeS does not offer analyses of federal judicial caseload, although tables maynote and explain significant fluctuations in the data. More detailed information appears in]udicid Businss ifthe Unued State Cams. If you have questions or comments on the statistical data presented in this report, please contact the Statistics Division at 202-502-1440 or via e-mail

This report is prepared by the Statistics Division Office of Judges Programs Administrative Office of the United States Courts James C Duff, Director TABLE OF CONTENTS

Total Judicial Officers

Table 1.1 Courts of Appeals, District Courts, and Bankruptcy Courts u.s. Courts of Appeals (Excluding Federal Circuit)

Table 2.1 Appeals Filed, Terminated, and Pending (Summary) Table 2.2 Appeals Filed, Terminated, and Pending (Details) Table 2.3 Appeals Filed, by Type of Appeal and Originating Agency Table 2.4 Pro Se Cases Filed Table 2.5 Types of Opinions or Orders Filed in Cases Terminated on the Merits After Oral Hearings or Submission on Briefs Table 2.6 Total Participations in Cases Terminated on the Merits After Oral Hearings or Submission on Briefs Table 2.7 Other Workload in the Courts of Appeals u. S. Court of Appeals for the Federal Circuit

Table 3.1 Appeals Filed, Terminated, and Pending Table 3.2 Appeals Filed, by Agency

U.S. District Courts-Civil

Table 4.1 Civil Cases Filed, Terminated, and Pending Table 4.2 Civil Cases Filed, by District Table 4.3 Civil Cases Filed, by Origin Table 4.4 Civil Cases Filed, by Nature of Suit Table 4.5 Product Liability Cases Filed, by Nature of Suit Table 4.6 Prisoner Petitions Filed, by Nature of Suit Table 4.7 Copyright, Patent, and Trademark Cases Filed TABLE OF CONTENTS (Continued)

Table 4.8 Civil Cases Filed, by Jurisdiction Table 4.9 Diversity of Citizenship Cases Filed, by Nature of Suit Table 4.10 Civil Cases Terminated, by Action Taken Table 4.11 Civil Cases Pending, by Length of Time Pending Table 4.12 Civil Consent Cases Terminated by U.S. Magistrate Judges Under 28 U.S.c. Section 636(c)

U.S. District Courts-Criminal

Table 5.1 Criminal Cases and Defendants Filed, Terminated, and Pending (Including Transfers) Table 5.2 Criminal Cases Filed, by District (Including Transfers) Table 5.3 Criminal Cases Filed, by Major Offense (Excluding Transfers) Table 5.4 Criminal Defendants Filed, by Major Offense (Excluding Transfers) Table 5.5 Criminal Defendants Disposed of, by Method of Disposition (Excluding Transfers)

U.S. District Courts-Combined Civil and Criminal

Table 6.1 Total Civil and Criminal Cases Filed, Terminated, and Pending (Including Transfers) Table 6.2 Total Weighted and Unweighted Filings per Authorized Judgeship Table 6.3 Median Time in Months from Filing to Disposition of Civil and Criminal Cases Table 6.4 Civil and Criminal Trials Completed Table 6.5 Length of Civil and Criminal Trials Completed Table 6.6 Cases and Defendants Terminated by Senior, Visiting, and Magistrate Judges

U.S. Bankruptcy Courts

Table 7.1 Bankruptcy Code Petitions Filed, Terminated, and Pending Table 7.2 Voluntary and Involuntary Cases Filed, by Chapter of the Bankruptcy Code Table 7.3 Business and Nonbusiness Bankruptcy Cases Filed, by Chapter of the Bankruptcy Code Table 1.1 Total Judicial Officers-Courts ofAppeals, District Courts, and Bankruptcy Courts

District Courts Courts ofAppeals District Court Judges Magistrate Judges Bankruptcy Courts Authorized Positions Fiscal Authorized Active Senior Authorized Active Senior Recalled Authorized Active Recalled 2 4 II I Clerkl Year Judgeships 1 Judges Judges Judgeships 3 Judges Judges Full-Time Part-Time Magistrate Judge Judges Judgeships Judges Judges 1990 5 168 158 63 575 541 201 329 146 8 5 291 289 13 1995 179 168 81 649 603 255 416 78 3 16 326 315 23 2000 179 156 86 655 612 274 466 60 3 23 325 307 30 2004 179 166 102 679 663 6 294 6 500 45 3 32 324 313 35 2005 179 166 6 106 6 678 642 300 6 503 45 3 34 352 315 32 2006 179 165 103 678 645 311 505 45 3 36 352 337 25 2007 179 163 107 678 647 310 505 45 3 36 352 339 27 2008 178 166 91 678 651 324 514 43 2 38 352 338 24 Percent Change 2008 over 1990 6.0% 5.1% 44.4% 17.9% 20.3% 61.2% 56.2% -70.5% * 660.0% 21.0% 17.0% 84.6%

1 Public Law No. 110-117, January 7, 2008, transferred one judgeship from the D.C. Circuit Court ofAppeals to the Ninth Circuit Court ofAppeals. The loss ofthe judgeship in D.C. became effective the date the bill became law, but the effective date of the additional judgeship forthe Ninth Circuit was January 21, 2009. 2 Sitting senior judges who participated in appeals dispositions. 3 Positions in the Districts of Virgin Islands, Guam, and Northern Mariana Islands are included. 4 Senior judges with staff. 5 Twelve-month period ending June 30. 6 Revised.

*Percentage isnot computed when the total forthe previous period isless than 10.

Source: Text narrative and tables, Annual Report of the Director: Judicial Business of the United States Courts. Table 2.1 U.S. Courts ofAppeals-Appeals Filed, Terminated, and Pending (Summary) Authorized Per Panel 2 Fiscal Year Judgeships 1 Filed I Terminated I Pending Filed I Terminated I Pending 1990 3 156 40,893 38,961 32,589 786 749 627 1995 167 50,072 49,805 37,536 899 895 674 2000 167 54,697 56,512 40,410 983 1,015 726 2004 167 62,762 56,381 51,071 1,127 1,013 917 2005 167 68,473 61,975 57,724 1,230 1,113 1,037 2006 167 66,618 67,582 56,486 1,197 1,214 1,015 2007 167 58,410 62,846 51,063 1,049 1,129 917 2008 166 61,104 59,096 53,071 1,104 1,068 959

Note: This table does not include data forthe U.S. Courts ofAppeals for the Federal Circuit.

1Public Law No. 110-117, January 7,2008, transferred one judgeship from the D.C. Circuit Court ofAppeals tothe Ninth Circuit Court of ofAppeals. The loss ofthe judgeship in D.C. became effective the date the bill became law, but the effective date ofthe ofthe additional judgeship for the Ninth Circuit was January 21, 2009. 2 Assumes every case required athree-judge panel. 3 Twelve-month period ending June 30.

Source: Table S, Annual Report ofthe Director: Judicial Business ofthe United States Courts. Table 2.2 u.s. Courts ofAppeals-Appeals Flied, Tennlnated, and Pending (Details) Cases Terminated Cases Commenced Procedural Terminations Terminations ontheMerits Cases Disposed After Submission on Fiscal of by After Oral Number Percent Cases Year Total OrlQlnal Reopened· Total Consolidation . Total By JudQe ByStaff Total Hearing Terminated Terminated Pending 1990'" 40,893 40,267 626 38,961 3,849 14,090 5,598 8,492 21,022 9,479 11,543 54.9 32,589 1995 50,072 49,184 888 49,805 3,1n 18,856 6,817 12,039 27,n2 11,080 16,692 60.1 37,536 2000 54,697 53.385 1,312 56,512 2,740 26,259 12,330 13,926 27,516 9,752 17,764 64.6 40,410 2004 62,762 61,459 1,303 56,381 2,108 26,835 12,047 14,788 27,438 , 8,645 18,793 68.5 . 51,071 2005 68,473 66,917 1,556 61,975 2,317 29,745 12,409 17,336 29,913 9,018 . 20,895 69.9 57,724 2006 66,618 64,427 2,191 67,582 2,356 30,646 12,321 18,325 34,580 8,956 25,624 74.1 56,486 2007 58,410 55.997 2,413 62,846 2,374 28,755 12,412 16,343 31,717 8,662 23,055 72.7 51,063 2008 61,104 59,127 1,9n 59,096 2,327 27,161 11,929 15,232 29,608 8,983 20,625 69.7 53,071

Note: This table does not Include data forthe U.S. Courts ofAppeals forthe Federal Circull • Beginning in2007, the category entitled ·reopened,· which Includes all ,reopene? replaced the category entitled ·relnstated.· Data on reopened cases for2007 and thereafter are not comparable todata published previously on reinstated cases. .. Twelve-month period ending June 30.

Source: Table B-1, Annual RepoTt of the Director: Judicial Business ofthe United states CouTts. Table 2.3 U.S. Courts of Appeals-Appeals Filed, byType of Appeal and Originating Agency Appeals From DistrictCourt Other Appeals CivilAppeals Criminal Appeals Fiscal Total Prisoner Petitions Other Civil Other Administrative Original Year Appeals Total Total U.S. Private Total U.S. Private Total Drugs Criminal Agency Bankruptcy Proceedings* 1990** 40,893 26,980 10,003 2,254 7,749 16,977 4,245 12,732 9,642 5,713 3,929 2,558 1,107 606 1995 50,072 34,203 14,985 3,459 11,526 19,218 4,460 14,758 10,162 4,499 5,663 3,295 1,667 745 2000 54,697 35,780 17,252 4,955 12,297 18,528 3,740 14,788 10,707 4,450 6,257 3,237 1,007 3,966 2004 62,762 33,075 16,561 4,992 11,569 16,514 3,239 13,275 12,506 4,660 7,846 12,255 862 4,064 2005 68,473 32,818 17,034 6,258 10,776 15,784 2,971 12,813 16,060 6,099 9,961 13,713 865 5,017 2006 66,618 31,991 16,776 5,647 11,129 15,215 2,880 12,335 15,246 5,858 9,388 13,102 821 5,458 2007 58,410 30,241 15,472 4,481 10,991 14,769 2,931 11,838 13,167 5,001 8,166 10,382 845 3,775 2008 61,104 31,454 16,853 5,186 11,667 14,601 2,914 11,687 13,667 6,048 7,619 11,583 773 3,627

Note: This table does not include data forthe U.S. Court ofAppeals forthe Federal Circuit.

* Proceedings not dependent on prior action by lower court oradministrative agency (e.g., writs ofmandamus, motions tofile second orsuccessive habeas petitions). The Antiterrorism and Effective Death Penalty Act, enacted inApril 1996, requires prisoners toseek permission from courts of appeals tofile second orsuccessive habeas corpus motions. Data for these and other types oforiginal proceedings were first reported on October 1, 1998.

**Twelve-month period ending June 30. Source: Tables B-1 and B-7, Annual Report ofthe Director: Judicial Business ofthe United States Courts. Table 2.4 U.S. Courts ofAppeals-Pro Se Cases Filed Pro Se Appeals From District Courts Other Appeals Civil Appeals Fiscal Total Prisoner Petitions Other Civil Criminal Administrative Original Percent Year Appeals Total Total Total U.S. Private Total U.S. Private Appeals Agency Bankruptcy Proceedings* ProSe 1995 50,072 19,973 17,842 13,083 2,763 10,320 4,759 1,364 3,395 803 622 438 268 39.89 2000 54,697 24,938 19,945 15,027 4,045 10,982 4,918 1,361 3,557 945 797 248 3,003 45.59 2004 62,762 26,800 19,093 14,530 4,269 10,261 4,563 1,156 3,407 1,140 3,056 233 3,278 42.70 2005 68,473 28,559 19,545 15,030 5,426 9,604 4,515 1,110 3,405 1,215 3,501 236 4,062 41.71 2006 66,618 28,671 19,421 14,970 5,039 9,931 4,451 1,110 3,341 1,109 3,395 261 4,485 43.04 2007 58,410 25,167 18,102 13,766 3,998 9,768 4,336 1,156 3,180 1,078 2,699 252 3,036 43.09 2008 61,104 28,055 19,588 14,993 4,493 10,500 4,595 1,167 3,428 2,369 2,899 243 2,956 45.91

Note: This table does not include data forthe U.S. Courts ofAppeals forthe Federal Circuit. *Proceedings not dependent on prior action bylower court oradministrative agency (e.g., writs ofmandamus, motions tofile second orsuccessive habeas petitions). The Antiterrorism and Effective Death Penalty Act (AEDPA), enacted in April 1996, requires prisoners toseek permission from courts of appeals tofile second orsuccessive habeas corpus motions. Data for these and other types oforiginal proceedings were first reported on October 1, 1998.

Source: Table B·9, Annual Report orthe Director: Judicial Business orthe United States Courts. Table 2.5 U.S. Courts ofAppeals- Types ofOpinions orOrders Filed In Cases Terminated on the Merits After Oral Hearings or Submission on Briefs Written, Reasoned, Written, Unsigned, Without Fiscal Written, Signed· Unsigned· Comment Total Percent Year Total Oral Published I Unpublished Published I Unpublished Published I Unpublished Unpublished Unpublished 1990·· 21,022 94 6,008 2,374 712 9,669 4 2,161 14,204 68.01 1995 27,772 99 6,118 3,814 566 14,233 5 2,937 20,984 75.91 2000 27,516 63 5,099 4,281 427 16,510 32 1,104 21,895 79.80 2004 27,438 20 4,782 4,468 366 16,973 54 775 22,216 81.04 2005 29,913 3 5,043 5,211 396 18,254 60 946 24,411 81.62 2006 34,580 1 5,082 7,277 353 20,763 71 1,033 29,073 84.08 2007 31,717 2 4,844 5,997 305 19,607 72 890 26,494 83.54 2008 29,608 0 4,949 5,870 388 17,399 40 962 24,231 81.84

Note: This table does not include data for the U.S. Courts ofAppeals forthe Federal Circuit. • Includes only those opinions and orders that expound on the law as applied tothe facts ofeach case and that detail the judicial reasons upon which the judgment is based . •• Twelve-month period ending June 30.

Source: Table S-3, Annual Report ofthe Director: Judicial Business of the United States Courts. Table 2.6 U.S. Courts ofAppeals- Total Participations in Cases Terminated on the Merits After Oral Hearings orSubmission on Briefs Case Participations by Resident Active Circuit Resident Senior Circuit Judges Judges Visiting Judges Percent by Senior Fiscal Year Total Number I Percent Number I Percent Number I Percent and Visiting Judges 1990· 63,597 51,705 81.3 7,550 11.9 4,342 6.8 18.7 1995 84,335 66,059 78.3 12,185 14.4 6,091 7.2 21.7 2000 83,475 64,209 76.9 14,281 17.1 4,985 6.0 23.1 2004 83,118 64,964 78.2 13,952 16.8 4,202 5.1 21.8 2005 90,409 69,989 77.4 15,733 17.4 4,687 5.2 22.6 2006 104,645 81,460 77.8 18,468 17.6 4,717 4.5 22.2 2007 94,984 72,097 75.9 17,979 18.9 4,908 5.2 24.1 2008 89,436 68,569 76.7 16,141 18.0 4,726 5.3 23.3

Note: Cases terminated on the merits after oral hearings orsubmissions on briefs by resident senior circuit judges have more than doubled since 1990. This table does not include data forthe U.S.Courts ofAppeals for the Federal Circuit. Due torounding, percents may not add up to 100.0.

• Twelve-month period ending June 30.

Source: Federal Court Management Statistics (1990); Supplemental Table S-2, Annual Report orthe Director: Judicial Business orthe United States Courts. Table 2.7 U.S. Courts of Appeals-Other Workload in the Courts of Appeals Pro Se Petitions for Rehearing Filed Per Judgeship Applications for Mandamus Pro Se Authorized Interlocutory Appeals Petitions Applications for Mandamus Petitions for Fiscal Year Judgeships* Terminated Terminated* Total Panel En Banc Interlocutory Appeals Petitions" Rehearing

1995 167 217 1,175 8,840 4,777 4,063 1 7 53

2000 167 280 - 9,400 4,950 4,450 2 - 56

2004 167 295 - 8,476 4,164 4,312 2 - 51

2005 167 198 - 8,572 4,105 4,467 1 - 51

2006 167 309 - 9,007 4,345 4,662 2 - 54

2007 167 347 - 8,811 4,213 4,598 2 - 53

2008 166 292 - 8,346 3,491 4,855 2 - 50 Note: This table does not include data forthe U.S. Court of Appeals forthe Federal Circuit.

• Public Law No. 110-117, January 7, 2008, transferred one judgeship from the D.C. Circuit Court ofAppeals tothe Ninth Circuit Court ofAppeals. The loss of the judgeship in D.C. became effective the date the bill became law, butthe effective date of the additional jUdgeship forthe Ninth Circuit was January 21, 2009 .

•• Effective October 1, 1998, in response tothe Prison Litigation Reform Act, reporting procedures were changed to record pro semandamus petitions forwhich filing fees were not paid atfiling as original proceedings requiring judicial review on the merits. Thus, these pro semandamus petitions are no longer reported separately, butare now included inthe original proceedings category.

Source: Text table from Annual Report ofthe Director: Judicial Business ofthe United States Courts and Unpublished Table 3. Table 3.1 U..S Court ofAppeals for the Federal Circuit-Appeals Filed, Terminated, and Pending

Authorized Terminated Fiscal Year Judgeships Filed Total ByJudges Other Percent Reversed Pending

1990· 12 1,466 1,393 842 551 11 708

1995 12 1,847 1,780 1,192 588 12 1,056

2000 12 1,509 1,518 1,139 379 15 1,103

2004 12 1,592 1,836 1,138 698 10 1,201

2005 12 1,555 1,662 1,065 597 11 1,094

2006 12 1,772 1,460 1,015 445 12 1,406

2007 12 1,545 1,718 1,257 461 14 1,233

2008 12 1,459 1,745 1,275 470 13 947 • Twelve-month period ending June 30.

Source: Table G-2 (1990) and Table B-8 (1995, 2000, and 2004-2008) Annual Report ofthe Director: Judicial Business ofthe United States Courts; History of Federal Judgeships. Table 3.2 USC. , ourt0 fAppeaIs for the Fe d era I C'Ircul lt - Appea Is F'Iuec, d b)Y Agency Merit Board of Court of U.S. Court U.S. Court of U.S. Department of International Systems Patent & Fiscal Contract International of Federal Appeals for District Veterans' Trade Protection Office of Trademark Year Total Appeals Trade Claims 1 Veterans Claims 2 Courts Affairs Commission Board Compliance 3 Office Writs Other 1990 4 1,466 84 39 172 2 308 5 8 687 0 131 30 0 1995 1,847 58 68 173 75 373 3 5 970 2 85 35 0 2000 1,509 38 43 144 186 455 9 2 501 3 91 37 0 2004 1,592 30 66 169 189 478 5 9 537 7 73 29 0 2005 1,555 29 62 191 202 488 2 7 479 3 64 28 0 2006 1,772 33 58 154 384 522 3 9 508 0 72 29 0 2007 1,545 16 67 188 319 439 3 38 389 4 52 30 0 2008 1,459 24 45 205 170 459 3 24 419 1 82 27 0

1 Inaccordance with P.L. 102-572 of October 29, 1990, the name of the U.S. Claims Court was changed to the U.S. Court of Federal Claims. 2 1n 1998, the U.S. Court of Veterans' Appeals was renamed the U.S. Court ofAppeals forVeterans Claims, pursuant to P.L. 105-368 of November 11,1998. 3 Petitions prior to 2005 were from the Senate Select Committee on Ethics. 4 Twelve-month period ending June 30.

Source: Table G-2 (1990), Table B-8 (1995,2000 - 2008), Annual Report of the Director: JUdicial Business of the United States Courts. Table 4.1 U.S. District Courts-Civil Cases Filed, Terminated, and Pending Fiscal Authorized Year Judgeships Filed Terminated Pending

1990· 575 217,013 214,435 241,512 1995 649 248,335 229,820 242,274 2000 655 259,517 259,637 249,261 2004 679 281,338 252,761 286,053 2005 678 253,273 271,753 266,216 2006 678 259,541 273,193 251,832 2007 678 257,507 239,678 265,443 2008 678 267,257 234,571 298,129

NOTE: Since the omnibus judgeship bill was passed in 1990 (P.L. 101-650),34 additional jUdgeships have been created in the district courts, and 5 temporary judgeships have lapsed asof September 30, 2008. • Twelve-month period ending June 30.

Source: Table C, Annual Report of the Director: Judicial Business of the United States Courts. Table 4.2 U.S. District Courts-Civil Cases Filed, by District Circuit and Fiscal Year District 1990 1 1995 2000 2004 2005 20061 20071 2008

TOTAL 217,013 248,335 259,517 281,338 253,273 259,541 257,507 267,257

DC 3,281 2,717 3,356 2,449 2,698 2,382 2,415 2,438

1ST 7,816 7,385 6,906 6,604 6,319 5,887 5,890 6,504

ME 632 746 670 I 492 478 3851 449 427 MA 4,103 3,484 3,241 3,312 3,270, 3,0851 3,131 2,901

NH 586 691 667 522 483 501 ! 450 501 RI 712 709 674 826 572 583: 593 1259 PR 1,783 1,755 1,654 1,452 1,516 1,333 ! 1,267 1,416

I 2ND 19,043 22,676 26,526 22,804 23,679 23,369: 27,165 22,815

CT 2,474 2,799 2,705 2,341 2,172 2,087 1 2,056 1,957 NY,N 1,440 1,852 2,341 1,545 1,659 1 1,590 1,453 1,395 NY,E 4,564 5,570 1 8,664 5,956 6,343 6,993 5,751 5,459 NY,S 8,746 10,273 10,389 10,859 11,453 10,793 16,125 12,124 NY,W 1,438 1,761 1,915 1,741 1,661 1,631 1,492 1,599 VT 381 421 512 362 391 275 288 281

3RD 20,878 i 21,713 22,396 29,686 29,986 44,792 32,521 52,327

DE 782 837 1,227 1,655 1,055 930 870 984 NJ 5,417 6,892 6,485 6,624 6,572 6,274 6,657 6,652 PA,E 2 8,996 8,500 8,548 15,263 16,427 31,997 19,739 39,296 PA,M 2,280 2,260 2,402 2,993 2,740 2,745 2,416 ' 2,454 PAW 2,736 2,873 3,278 2,835 2,801 : 2,472 2,476, 2,596 VI 667 351 456 316 391 374 3631 345

, 4TH 17,407 I 19,808 21,260 39,653 18,765 17,610 17,3311 18,167 I MD 3,467 3,993 4,002 4,146 3,779 3,391 3,601 3,463 NC,E 1,288 1,494 1,497 1,498 1,440 1,264 1,367 1,432

NC,M 697 914 1,288 1,231 , 1,190 1,176 1,003 978

NC,W 749 914 1,108 1,114 987 1,068 1,049 1 1,191 I SC 3 3,084 4,214 4,195 23,599 3,969 3,6251 4,403 4,454 VA,E 4,620 4,372 5,328 4,498 4,054 3,891· 3,239 3,173 VA,W 1,502 2,111 1,910 1,492 1,334 1,339 1,146 1,177 WV,N 545 597 674 667 670 598' 633 769 WV,S 1,455 1,199 1 1,258 1,408 1,342 1,2581 890 1530 Table 4.2 (Continued) U.S. DistrictCourts-Civil Cases Filed, by District

Circuitand Fiscal Year District 1990 1 1995 2000 2004 2005 20061 20071 2008 I 1 5TH 29,561 , 36,942 31,412 32,083 32,6711 34,310 34,662 31,707

LA,E 5,101 4,010 3,753 3,393 4,774 9,805 10,484 8,325 LA,M 1,199 2,913 1,035 1,078 1,421 1,064 999 917 LA,W 3,041 2,432 2,935 2,690 2,458: 2,337 2,468 2,102 MS,N 1,151 , 1,159 1,371 1,452 1,1941 1,128 947 981 MS,S 1,808 2,376 2,467 3,264 4,145 2,780 2,702 2,996 TX,N 4,967 4,937 6,352 5,427, 4,790 4,516 4,213 4,055 TX,E 3,070 3,437 3,127 3,285 3,004 3,001 3,222 2,866

1 TX,S 5,883 12,564 7,141 8,233' 7,172 6,467 6,434 , 6,300 TX,W 3,341 3,114 3,231 3,261 3,713 3,212 3, 193 3,165

6TH 24,372 26,315 27,428 27,441 25,759 21,394 21,322 20,778

1,604 1,720 KY,E 1,712 1,989 1 2,278 2,301 2,287 1,940 KY,W 1,572 1,577 I 1,634 1,422 1,443 1,411 1,309 1,336 MI,E 4,963 5,153 5,807 4,871 5,625 5,655 5,580 5,442 MI,W 1,747 1,745 1,574 1,762 1,619 1,578 1,593 1,581 OH,N 6,992 8,184 7,850 9,558 7,951 4,393 4,543 4,068 OH,S 2,433 2,821 3,373 2,862 2,552 2,374 2,836 2,666 TN,E 2,087 1,841 1,742 1,685 1,484 1,257 1,181 1,223 TN,M 1,590 1,554 1,531 1,573 1,369 1,535 1,548 1,525 TN,W 1,276 1,451 1,639 1,407 1,429 1,251 1,128 1,217

7TH 16,880 17,753 18,989 19,736 17,602 16,096 15,594 15,783 , i IL,N 8,047 7,859 8,843 9,615 8,128 7,265 7,620 7,681 IL,C 1,128 1,391 1,263 1,142 1,139 1,021 i 1,009 1,047 I IL,S 1,246 1,359 1,382 1,268' 1,266 1,1601 1,025 929 IN,N 1,427 2,042 2,119 2,097 1,927 1,843 1,516 1,471 IN,S 2,808 2,779 2,833 3,142 2,887 2,673 2,411 2,704 WI,E 1,323 1,357 1,747 1,550 1,394 1,396 1,231 1,154 WI,W 901 966 802 922 861, 738 782 797

8TH 14,183 14,739 13,948 17,370 16,246 16,516 15,569 18,708 , , I AR,E 2,156 2,086 2,317 2,662 3,700' 2,987, 2,063, 4,723 AR,W 894 924 1,171 1,264 844 848: 803 860 IA,N 587 884 663 607 666 551 549 551 IA,S 1,049 1,310 1,031 1,022 965 845 1 779 765 MN 2,026 2,283 2,878 5,603 3,2151 4,714 5,412 6,186 MO,E 2,763 2,694 2,427 2,143 2,637 2,455 2,414 2,250 MO,W 2,435 2,571 1,633 2,314 2,518 2,401 2,037 2,013 NE 1,382 1,112 1,053 1,063 1,020 1,086 891 751 NO 486 369 I 331 289 269 211 203 267

1 SO 405 506 I 444 403 412 418 418 342 Table 4.2 (Continued) U.S. District Courts-Civil Cases Filed, by District

Circuitand Fiscal Year District 1990 1 1995 2000 2004 2005i 2006 2007 2008 !

9TH 30,408 36,953 44,533 I 43,944 41,6621 41,178 40,637 39,909 , AK 609 700 484 374 3601 363 347 361 AZ 2,863 3,660 3,268 3,530 4,887 4,369 3,477 3,539 CA,N 4,617 5,223 5,810 5,785 5,465 7, 8121 7,074, 6,175 CA,E 2,451 3,382 4,675 4,631 4,290 4,534' 4,595 4,807 CA,C 9,014 10,303 16,533 14,415 12,598 11,104 11,904 12,130 CA,S 1,864 2,881 2,782 2,845 2,708 2,860 2,829 2,650 HI 948 1,050 892 772 791 726 663 578 ID 640 570 760 659 591, 538 542 576 MT 759 , 683 729 725 6521 624 620 610 NV 1,633 2,140 2,351 2,557 2,410 2,282 2,463 2,588 OR 1,998 2,592 2,396 2,537, 2,6141 2,396 2,524 2,239 WA,E 707 729 729 956: 808 701 640 650 WA,W 2,208 2,855 3,034 4,075 3,411 2,772 2,874 2,938 GU 74 130 53 52 41 44 38 22

NMI 23 55 37 311, 36 53 47 46 1 I 10TH 11,188 12,545 12,263 11,177 10,612 10,000; 9,994 9,916

! CO 2,310 3,286 2,600 2,847 2,661 2,809 2,796 2,877 KS 1,923 1,898 1,800 1,744 1,700 1,498 1,551 1,517 NM 1,292 1,564 1,888 1,486 1,424 1,328 1,449 1,267 OK,N 1,141 1,292 1,200 993 821 730 745 791 OK,E 680 620 795 638 572 549 487 498 OK,W 2,233 2,168 2,395 1,713 1,768 1,506 1,536 1,450 UT 1,218 1,323 1,200 1,402 1,294 1,272 1,141 1,190 WY 391 394 385 354 372 308 289 326

I 11TH 21,996 1 28,789 30,500 28,391 27,274 26,007 34,407 28,205

AL,N 2,749 6,880 3,716 3,694 2,937 2,675 4,843 2,461 AL,M 1,460 I 1,690 1,741 1,252 1,296 1,226 1,187 1,102 AL,S 1,156 1,120 , 1,148 899 788 822 980: 792 I FL,N 1,070 1,663 1,586 1,495, 1,505 1,633 1,635' 1,732 FL,M 4,320 5,547 7,017 7,253 7,009 6,739 12,6601 7,593 , FL,S 4,992 5,331 1 8,188 6,720' 7,138 6,716 7,072 7,815 GA,N 3,388 3,953 4,314 4,822· 4,210 3,879 3,900 4,621 GA,M 1,058 1,396 1,438 1,189: 1,159 1,167 1,210: 1,132 GA,S 1,803 1,209 i 1,352 1,067 1,232 1,150 9201 957

1Twelve-month period ending June 30.

L In2006, the court issued an order requiring the transfer of all pending and future asbestos product liability cases filed under multidistrict litigation number MDL 875 tothe Eastem District ofPennsylvania, which led to an increase ofover 14,000 cases filed.

j In 2004, significant growth incivil filings occurred inthis district due to an influx ofapproximately 20,000 filings related toone case inthe U.S. Bankruptcy Court inthat district.

Source: Table C, Annual Report ofthe Director: Judicial Business ofthe United States Courts. Table 4.3 U.S. District Courts-Civil Cases Filed, by Origin

Fiscal Removals From State Remands From Courts of Year Total Original Filings 1 Courts Appeals Reopens 2 Transfers 3 1990 4 217,013 177,684 26,989 1,066 9,171 2,103 1995 248,335 190,843 39,901 796 7,727 9,068 2000 259,517 212,454 30,194 914 9,135 6,820 2004 281,338 217,309 34,443 697 10,217 18,672 2005 253,249 198,130 30,178 583 9,407 14,951 2006 259,520 183,511 29,437 602 25,841 20,129 2007 257,490 189,311 30,282 615 10,238 27,044 2008 267,257 184,370 30,065 597 8,572 43,643

1 Data include small numbers of appeals from magistrate judge jUdgments and cases of unknown origin; thus, the totals may not match original filings data inTable S-7 ofthe Judicial Business ofthe U. S. Courts. 2 In 2006, the Eastern District ofPennsylvania accounted for65 percent ofreopened cases with over 16,900 personal injury/product liability cases. Thirty- six percent of the transfers were a result of7,208 multidistrict litigation cases addressing asbestos. 3 Transfers are calculated for fiscal years 1990 and 1995 because earlier tables did not include multidistrict litigation transfers; thus, data forcivil cases filed may not match data in Table S-7 ofJudicial Business ofthe United States Courts. 4 Twelve-month period ending June 30.

Source: Tables S-4 (1990) and S-7 (1995, 2000, 2004-2008), Annual Report ofthe Director: Judicial Business ofthe United States Courts. Table 4.4 U.S. District Courts-Civil Cases F'Iue d bllv Nature 0 fS Ult . I .. icI':1 Y":I' 1 Nature of Suit I 1990 1995 2000 2004 2005 2006 2007 2008

TOTAL 217,013 248,335 259,517 281,338 253,273 259,541 257,5071 267,257

CONTRACT ACTIONS, TOTAL 44,4811 31,1821 53,625 29,404 28,020 30,044 33,939 34,172 Insurance 104 7,540 7,517 8,460 7,804 9,792 287 12,697 7, 1 13, 1 Marine 3,286 2,622 2,446 1,676 1,435 1,700 1,969 2,349 Miller Act 1,458 775 769 386 387 359 302 225 1 Negotiable Instruments 2,993 ' 1,536 495 440 447 336 377 504 Recovery ofOverpayments and Enforcement ofJudgments, Total 9,449 1,822 24,838 2,830 3,309 2,8721 3,204. 3,447 Medicare Benefits 104 66 114 101 126 152 Student Loans 2 4,471' 1,142 24,404 2,438 2,883 2,395 2,673 2,910 Veterans' Benefits 3 4,381 253 43 18 8 13 20 9 Other 493 361 277 273 292 312 511 528

Other Contract Actions 20,191. 16,887 17,560 15,612 14,638 14,985 16 14,559 14,4 1

REAL PROPERTY ACTIONS, TOTAL 9,603 6,869 6,711 5,845 4,561 4,414 5,1801 5,072 Condemnation of Land 474, 334 1,243 197 251 316 321 944 Foreclosure 7,188 4,972 4,209 4,306 3,012 2,644 2,960 2,144 Rent, Lease, and Ejectments 348 310 175 169 154 142 135 172 Torts to Land 488 401 377 385 380 467 842 510 Other Real Property Actions 1,105 8521 707 788 764 845 922 1,302 1 ! 1 TORT ACTIONS, TOTAL 44,041 53,9861 36,586 55,023 51,335 68,804 61,359 72,011 Personal Injury, Total 4 40,815 50,5651 32,621 50,594 47,364 64,743 57,244' 68,121

Personallniurv/Product Liabilitv 18,839 '27,547 14,4'28 34,100 '29,537 48,739 30,409 5'2,110 . Other Personal Injury, Total 21,976 23,0181 18,193 16,494 17,827 16,004 20,7751 16,011 Airplane 873 683; 747 483 351 294 478! 386

Marine 2,937 2,277 ' 2,006 1,841 1,667 1,584 1,597 1 1,393 Motor Vehicle 6,105 5,374 4,690 4,229 4,091 3,938 64 3,636 3,7 1 Assault, Libel, and Slander 670 826 801 668 647 587 533 557 Fed. Employers Liability Act 2,703 1,903 1,108 782 748 700 585 511 Medical Malpractice 1,346 1,328 1,526 1,313 1,221 1,221 1,164 1,255 Other 7,342 10,627 7,315 7,178 9,102 7,680 12,654 8,273

Personal Prnoertv Damaoa. Total A?1 A A?O 071 A 4,115 3,890 Fraud, Including Truth in Lending 1,561 1,881 2,265 2,909 2,465 2,313 2,129 2,245 Other Personal Property Damage 1,665 1,540 1,700 1,520 1,506 1,748 1,986 1,645 ! ACTIONS UNDER STATUTES, TOTAL 118,762 156,209 162,583 191,017 169,265 156,177 156,916 155,939

Antitrust 1,038 1,318 527 781 858 752 818 986!I

Bankruptcy, Total 5,179 5,046 3,361 4,145 3,000 3,389 3,164 2,383 Appeal (28 U.S.C. 158) 4,330 4,312 2,785 2,8221 2,435 ' 2,475 2,290 ' 1,954 Withdrawal (28 U.S.C. 157) 849 734 576 323 914 874 429 1, 1 565 1 Banks and Banking 701 432 205 3661 258 201 234 258 Table 4.4 (Continued) U.S. District Courts-Civil Cases Filed b Nature ofSuit

Nature ofSuit 1990 2004 2005 2006 2007 2008

Civil Rights, Total 5 18,922 36,600, 40,908 40,239 36,096 32,865 31,756!! 32,132 Voting 140 208 167 173\ 166 150 118 145 Employment 8,273 19,059 21,032 19,746 16,930 14,353 13,375 13,219 Accommodations 364 735 1,284 1,222 885, 643 665 644 Welfare 137 116 80 61 54, 56 27 ' 48 Other Civil Rights 10,008 16,482 18,345 19,037 18,061 17,663 17,571 18,076

Environmental Matters 1,004 1,081 ' 886 978! 714 871 767 920 Deportation 66 106 213 1 316 201 130 115 130 Prisoner Petitions 43,199! 63,550 58,2571 55,330 1 61,238 54,955 53,945 54,786 I ! Forfeiture and Penalty, Total 6,0211 2,517 2,320 2,146 2,298' 2,224 2,272 2,331 Agricultural Acts 87 155 57 43 27' 18: 29 26 2,663 197 110 42 49 42; 55 47 Food and Drug Act 1 Drug-Related Seizure of Property I 1,042 1,117 1,292 1,359 1,328 1 1,355 1,399 AirTraffic Regulations 49 11 7 6 6 2 5 4 Occupational Safety and Health Ac 58 33 4 7 5 8 7 8 Other Forfeiture and Penalty Suits 3,164 1 1,079 1,025 756 852 826 821 847 1 Labor Laws, Total 14,068 14,9541 14,142, 18,330 18,322 16,6591 18,674! 16,788 Fair Labor Standards Act 1,257 1,580 1,935 3,617 4,039 4,207 5,393 Labor Management Relations Act 2,272 1,984 1,542 1,641 1,674 1,239 , 1,051 Labor Management Reporting & Disclosure Act 165 161 101 81 88 63 82 1 66 Railway Labor Act 197 172 137 111 104 108 92 83 ERISA 6 . 9,517 9,124 11,421 11,171 9,748 8,986 8,983 Other Labor Litigation 10,177 1,540 1,303 1,459 246 1,294 1,125, 1,212 1, 1

Protected Property Rights 5,738 6,866, 8,738 9,590 12,184 11,514 10,783 9,592

Securities, Commodities, and 1,621 Exchanges 2,6451 1,906 2,678 3,094 2,038 1,394 1,637 I Social Security Laws, Total 6,895 9,354 15,829 15,873 15,487 13,847 12,974 13,138 Health Insurance 119 81 70 61 58 53 56 - Black Lung Cases 28 11 20 4 20 7 2:1 - Disability Insurance 4,743 1 5,501 8,122 7,061 7,024 6,480 6,187 6,080 Supplemental Security Income 1,774 3,347 6,762 7,916 7,675 6,649 6,135 1 6,373 Retirement and Survivors Benefits 231 414 855 831 710 658, 594 603

1 1 RICO 7 .. 900: 829 777 781 687 653 684 1

State Reapportionment Suits 3 i 5 8 6 6, 4

Tax Suits 2,672 2,20; 907 1 1,314 1,385, 1,490 1,522 1,451 1 Customer Challenge 39 33 12' 16 21 12 8 I 17 Freedom of Information Act 411 467' 341 315 404 312 335 639 Constitutionality ofState Statutes 304 309 288. 317 310 304 277 280 Other Statutory Actions 8 10,368 9,098 11,809 37,1141 13,702 14,099 108 16,267 17, 1 Table 4.4 (Continued) U.S. District Courts-Civil Cases Filed, by Nature ofSuit

FOOTNOTES

I Twelve-month period ending June 30.

2 Filings forrecovery ofdefaulted student loans decreased from 1990 to 1995 due to a change in of Education (DOE) policy on the collection ofdelinquent loans. Renewed growth peaked in2000 as aresult ofa streamlining ofthe loan-processing system. In 2001. DOE implemented new administrative measures that ceused fewer student loan cases to be filed In federal courts.

3 Filings forrecovery ofoverpayments of veterans' benefits have decreased significantly as the Department of Veterans' Affairs has used administrative actions and the Internal Revenue Service torecover overpayments rather than file suit indistrjct courts. For additional information, see the 1991 Annual Report ofthe Director. Judicial Business ofthe United States Courts, page 86. . .

4 The increase in personal injury filings between 1990 and 1995 was attributed mostly tobreast implant cases and cases related toan oil refinery explosion inLouislana In2002, personal injury/prOduct liability fi6ngs more than tripled due tolarge numbers ofplaintiffs seeking relief in the expectation that new laws might soon increase the difficulty of fiJjng cases related to asbestos, as well ·as plaintiffs alleging injurious side effects of the antH:holesterol drug Bayco!. The 58 percent lncrease in personal injury/product liability filings in2004 resulted from the transfer of several thousand cases tothe Northern District ofOhio as part ofmulticfJstrict litigation (MDL) involving welding products that contained manganese. Inaddition, a number ofdistrict courts experienced influxes ofMDL, cases relafed toBaycol orPhentenninelFenfluramineJDexfenfluramine (Fen-phen). In2006, personal injury/product liability filings rose 64 percent primarily as a result of 15,000 additional asbestos cases, over 14,000 ofwhich were MOL filings inthe Eastern District ofPennsylvania. Civil rights increased significantly after 1990.largely because ofthe CMI Rights Act of 1991 and the Americans with Disabilities Act of1990. With the exception ofwelfare filings that increased bytwo cases. filings in allcategories ofcivll rights continued to decline since 2004.

5 Civil rights filings increased significantly after 1990 largely because of the Civil Rights Act of 1991 and the Americans wjth Disabilities Act of 1990. With the exception ofwelfare filings that increased bytwo cases, filings inall categories ofcivil rights continued to decline since 2004.

Ii ERISA = Employee Retirement Income Security Act ERISAl'iIings in 1990 were included in'ofher labor litigation."

7 RICO = Racketeer Influenced Corrupt Organization Act RICO data not reported in 1990.

8 In2004, approximately 20,000 filings were related toone case inthe U.S. Bankruptcy Court for the District ofSouth Carolina.

Sources: Table C-2, Tables S-8 for 1995, 2000. and-2002 through 2004; Table 8-5 for 2005 and 2006; Table C-2 for 1990,1995.2000, and 2003; Table 8-9 for2004; and Table s-6 for 2005 through 2008. Annual Report ofthe Director. Judicial Business ofthe United States Coutts. Table 4.5 U.S. District Courts-Product Liability Cases Filed, by Nature ofSuit Personal Injury Property Fiscal Year Total Asbestos I Other I Airline I Marine I Motor Vehicle Contract Actions Torts to Land Damage 1990 1 19,621 13,809 3,973 191 277 589 383 65 334 1995 28,226 6,916 19,857 155 53 566 249 64 366 2000 15,318 7,187 6,602 164 54 421 350 72 468 2004 34,928 1,471 31,879 100 32 618 260 99 469 2005 30,295 1,243 27,638 79 46 531 224 103 431 2006 33,196 16,547 2 31,520 74 37 561 265 148 591 2007 25,162 12,404 2 23,460 114 44 447 249 348 500 2 2008 19,322 33,780 17,806 101 33 390 226 247 519

1 Twelve-month period ending June 30.

2 Data for2006 through 2008 resulted from new influxes of asbestos cases filed inthe Eastern District of Pennsylvania.

Source: Personal injury/product liability data from Table C-2, Table S-7 (1990), and Table S-1 0 (1995, 2000, 2004-2008), Annual Report orthe Director: Judicial Business orthe United States Courts. Table 4.6 U.S. District Courts-Prisoner Petitions Filed, by Nature ofSuit

u.s. Cases Private Cases Motions to Habeas Prison Habeas Prison Vacate Corpus Conditions & Mandamus and Corpus Death Conditions & Mandamus and Fiscal Year Grand Total Total Sentence General* Civil Rights Other Total General Penalty Civil Rights Other

1990** 43,209 7,103 3,087 2,333 1,130 553 36,106 10,656 79 25,030 341

1995 63,550 8,951 5,988 1,343 1,110 510 54,599 13,462 170 40,569 398

2000 58,257 11,880 6,341 3,870 1,041 628 46,377 21,090 259 24,464 564

2004 55,330 13,908 7,137 4,923 1,334 514 41,422 18,432 214 22,115 661

2005 61,238 18,010 10,361 5,683 1,286 680 43,228 18,961 229 23,328 710

2006 54,955 12,032 6,515 3,789 1,116 612 42,923 18,959 236 23,123 605

2007 53,931 11,282 5,896 3,285 1,246 855 42,649 18,907 232 22,779 731

2008 54,781 11,284 6,352 3,030 1,304 598 43,497 18,268 187 24,375 667

Note: Prisoner petitions increased 47percent between 1990 and 1995. Since 1995, fluctuations have occurred in prisoner petitions as a result oflegislation (the Prison Litigation Reform Act and Title I ofthe Antiterrorism and Effective Death Penalty Act, both ofwhich were passed in April 1996) and Supreme Court decisions (Bailey v. United States in 1995, Apprendi v. New Jersey in 2000; and United States v. Booker in2005). The 45 percent increase in motions tovacate sentence in 2005 likely resulted from the Booker decision. In 2006, motions tovacate sentence and habeas corpus petitions filed by federal prisoners both declined more than 30 percent. The total provided here forprisoner petitions does not match exactly the data reported on the C-3 Table for 1990 because the data forthis table were recomputed for the fiscal year.

* Includes U.S. death penalty cases. **Twelve-month period ending June 30.

Source: Table C-3, Annual Report ofthe Director: Judicial Business ofthe United States Courts. Table 4.7 U.S. District Courts-Copyright, Patent, and Trademark Cases Filed U.S. Cases Private Cases Fiscal Year Grand Total Total Patent Trademark Total Copyright Patent Trademark

1990 1 5,729 37 24 13 5,692 2,075 1,212 2,405

1995 6,866 27 17 10 6,839 2,417 1,706 2,716

2000 8,738 41 24 17 8,697 2,050 2,460 4,187

2004 9,590 32 20 12 9,558 3,007 3,055 3,496

2005 12,184 25 14 11 12,159 5,796 2,706 3,657

2006 11,514 28 23 5 11,486 4,944 2,807 3,735

2007 10,783 22 18 4 10,761 4,400 2,878 3,483

2 2008 6,358 19 14 5 6,339 3,234 2,895 3,444

Note: Filings increased steadily from 1990 through 2000 due torapid growth in advanced technology and an increase in the number ofcompanies and individuals who view intellectual property as an asset tobe protected. Filings decreased in 2000, primarily because ofa significant decline in trademark filings. The significant growth in filings in 2004 resulted mainly from a 23 percent increase in copyright filings, much ofwhich occurred after ajudge ruled that acase originally filed in the Eastern District of Pennsylvania against more than 200 defendants had tobe refiled as individual cases against each ofthe defendants. Filings continued togrow in 2005, but declined 5 percent in2006 primarily due toa 15 percent drop in copyright filings. The 2005 increase likely resulted when music companies filed infringement cases against individuals fordownloading copyrighted recordings.

1 Twelve-month period ending June 30.

2 Over the past year, 70 percent ofthe U.S. district courts reported lower filings. Their filings are now returning tolevels reported prior to 2004.

Source: Table C-11, Annual Report ofthe Director: Judicial Business ofthe United States Courts. Table 4.8 U5, , 0'IS tnc ' t cou rt s- C"IIVI Cases F"Inee,d b)Y Juns ' dlIC tl Ion U.S. Cases Private Cases Fiscal Year Total Plaintiff Defendant Federal Question Diversity of Citizenship Local Jurisdiction

1990· 217,013 30,188 24,510 104,307 57,435 573

1995 248,335 14,130 29,028 153,489 51,448 240

2000 259,517 34,124 36,985 139,624 48,626 158

2004 281,338 10,071 38,391 165,241 67,624 11

2005 253,273 10,400 41,986 138,696 62,191 -

2006 259,541 9,257 35,037 134,877 80,370 -

2007 257,507 9,564 35,900 139,424 72,619 .

2008 267,257 9,649 34,515 134,582 88,457 54

Note: Overall filings increased in 2000 due primarily toincreases inprivate cases, particularly those involving asbestos; many ofthose asbestos cases were remanded tostate court. The growth incivil filings in 2004 resulted from a 16 percent increase infederal question cases; approximately 20,000 ofthose filings involved one case inthe U.S. Bankruptcy Court for the District of South Carolina. In addition, diversity ofcitizenship filings rose significantly in 2004 due toa 58 percent increase in personal injury/product liability filings. In 2006, diversity ofcitizenship filings rose 29 percent, mainly in response toan increase ofover 14,000 asbestos cases filed in the Eastern District ofPennsvlvania.

• Twelve-month period ending June 30.

Source: Table C-2, Annual Report ofthe Director: Judicial Business ofthe United States Courts. Table 4.9 U.S. District Courts-DiversityOfCitizenship Cases Filed, by Nature of Suit Fiscal Year

1 Nature of Suit 1990 1 1995 2000 2004 2005 2006. 2007 2008

:

TOTAL 57,435 51,448 48,626 I 67,624 62,191 I 80,370 72,619 88,457

CONTRACT ACTIONS, TOTAL 22,859 20,992 21,581 20,276 19,2661 20,970 23,298 23,211 Franchise . . . I . . . 291 I Insurance 5,983 6,528 6,259 , 7,166 7,870 10,430 9,955 Marine 202 157 149 116 93 111 110 99

1,162 771 401 332 338 276 309 1 434 Negotiable Instruments I Recovery ofOverpayments & I Enforcement ofJudgments, Total 107 106 96 93 1051 144 189 233 Other Contract Actions 15,405 13,430 14,676 12,569: 12,139 12,569 12,260 12,199 I REAL PROPERTY ACTIONS, TOTAL 2,192 1,531 I 2,085 2,773 1,622 1,798 2,527 1,839 Condemnation ofLand 15 11 20 14 17 13 29 30 Foreclosure 1,310 798 1,430 2,061 928 945 1,521 756 Rent, Lease, Ejectment 148 137 86 92 87 86 75, 105 Torts toLand, Including Prod. Liability 348 240 258 273 226 304 401 352 Other Real Property Actions 371 345 291 333 364 450 501 596

TORT ACTIONS, TOTAL 32,251 28,806 i 23,594 43,919i 40,866 57,240 46,437 62,427 Personal Injury, Total 30,343 ' 26,756 I 21,291 41,769 38,588 54,888 43,975 60,153 , , I Personal Injury/Prod uct Liability, Total 17,691 12,059 10,176 31,842 27,212 45,485 34,974 50,995 Airplane 168 99 133 68 57 60 64 82 Marine 234 28 33 22 19! 14 18 18 Motor Vehicle 555 541 388 573 491 523 405 360 Asbestos 2 12,909 2,098 3,501 981 1,029 16,030 12,254 33,568 Other 3 3,825 9,293 6,121 30,198 25,616 28,858 22,233 16,967

Other Personal Injury, Total 12,652 14,697 11,115 9,927 11,376 9,403 9,001 9,158 Airplane 571 432 367 244 219 157 260 157

Marine 442 356 ! 208 218 226 255 252 265 1 Motor Vehicle 5,018 4,305 3,821 1 3,495, 3,356 3,271· 3,113 3,012 Assault, Libel, & Slander 441 568 535 398 416 378 327, 368 1

1

Medical Malpractice 769 800 857 668 1 631 588 567 698 Other 4 5,411 8,236 5,327 904 6,528 54 4,482 4,658 4, 1 4,7 1

I ! Personal Property Damage, Total 1,908 1 2,050 2,303 2,150 2,278 2,352 2,462 2,274 Fraud, Including Truth inLending 915 ! 1,091 1,149 1,136 1,292 1,229 1,024 I , 1,095 Other Personal Property Damage 993 959 1,154 1,014 986 1,123 1,438 1,179 ,

OTHER ACTIONS, TOTAL 133 I 119 1,366 I 656 4371 362 357 973

1 Twelve-month period ending June 30. 2 The increases in2006 and 2008 primarily resulted from influxes of asbestos filings inthe Eastern District ofPennsylvania.

3 Other personal injury/product liability filings continued toincrease in2003 as a large number ofplaintiffs alleged injurious side effects of the anticholesterol drug Baycol. In2004, total diversity ofcitizenship filings rose significantly due toa 55 percent increase inpersonal injury product/liability filings. Most ofthe growth resulted from the transfer ofseveral thousand cases tothe Northem District of Ohio as part ofmultidistrict litigation involving welding products that contained manganese. Inaddition, many district courts experienced an influx ofcases related to multidistrict litigation involving either Baycol or Phentermine/Fenfluramine/Dexfenfluramine (Fen-phen).

4 The significant increase inother personal injury cases in 1995 was mostly attributable toa large number cases related to an oilrefinery explosion in Louisiana.

Source: Table C-2, Annual Report ofthe Director: Judicial Business ofthe United States Courts. Table 4.10 U.S. District Courts-Civil Cases Terminated, by Action Taken

No Court During orAfter During orAfter Trial Fiscal Year Total Action Total Before Pretrial Pretrial Total INonjury I Jury I%Reaching Trial 1990 1 213,429 51,630 161,799 127,017 25,519 9,263 4,480 4,783 4.3% 1995 229,325 36,558 192,767 166,017 19,307 7,443 3,317 4,126 3.2% 2000 259,234 43,281 215,953 189,808 20,365 5,780 2,001 3,779 2.2% 2004 252,016 54,273 197,743 174,212 19,580 3,951 1,422 2,529 1.6% 2005 270,973 62,661 208,312 183,072 21,341 3,899 1,289 2,610 1.4% 2006 272,644 60,863 211,781 170,028 38,198 3,555 1,140 2,415 1.3% 2 2007 239,292 55,275 184,017 150,756 23,429 9,832 1,093 8,739 2 4.1% 3 2008 233,826 55,024 178,802 151,404 22,675 4,723 2,510 3 2,213 2.0%

Note: Land condemnation cases omitted.

1 Twelve-month period ending June 30.

2 These increases resulted from terminations ofoil refinery explosion cases inthe Middle District of Louisiana.

3 More than 1,400 ofthe cases were related tooil refinery explosions in the Middle District of Louisiana.

Source: Table C-4, Annual Report ofthe Director: Judicial Business ofthe United States Courts. Table 4.11 U.S. District Courts-Civil Cases Pending, by Length ofTime Pending Length ofTime Less Than 1 I I 3 Years orMore Fiscal Year Total Year 1to 2 Years I 2to 3 Years I Number I Percent 1990* 242,808 134,550 55,456 27,130 25,672 10.6% 1995 242,274 156,254 51,119 21,363 13,538 5.6% 2000 249,261 153,033 45,651 20,143 30,434 12.2% 2004 286,053 177,370 52,303 20,415 35,965 12.6% 2005 266,216 151,485 52,796 22,335 39,600 14.9% 2006 251,832 150,363 50,434 23,458 27,577 11.0% 2007 265,082 162,516 62,059 23,061 17,446 6.6% 2008 298,129 169,162 71,543 35,604 21,820 7.3%

* Twelve-month period ending June 30.

Source: Table C-6, Annual Report ofthe Director: Judicial Business ofthe United States Courts. Table 4.12 U.S. District Courts-Civil Consent Cases Terminated by U.S. Magistrate Judges Under 28 U.S.C. Section 636(c) Fiscal Years Total Without Trial I Jury Trial I NonJury Trial 1990' 4,958 3,950 495 513 1995 8,967 7,371 813 783 2000 11,481 10,181 750 550 2003 13,811 13,044 479 288 2004 13,092 12,440 422 230 2005 12,282 11,669 399 214 2006 11,521 10,944 379 198 2007 10,575 10,065 322 188 2008 10,814 10,290 313 211 • Twelve-month period ending June 30.

Source: Table M-5, Annual Report of the Director: Judicial Business ofthe United States Courts. Table 5.1 U.S. District Courts-Criminal Cases and Defendants Filed, Terminated, and Pending (Including Transfers) Filed Terminated Pending Defendants per Fiscal Year Authorized Judgeships Cases Defendants Case Ratio Cases Defendants Cases Defendants 1990· 575 48,035 65,855 1.4 44,570 60,647 36,131 53,768 1995 649 45,788 64,771 1.4 41,527 57,275 30,589 47,978 2000 655 62,745 83,963 1.3 58,102 77,185 47,609 69,286 2004 679 71,022 93,349 1.3 64,621 83,606 65,619 91,507 2005 678 69,575 92,226 1.3 66,561 86,616 68,914 96,668 2006 678 66,860 88,216 1.3 67,499 88,601 69,293 96,909 2007 678 68,413 89,306 1.3 67,851 88,471 73,418 101,398 2008 678 70,896 92,355 1.3 70,629 91,817 73,685 101,936

Note: Pending totals for 1994 and thereafter exclude each case in which the defendant has been a fugitive formore than one year. However, nocase with multiple defendants has been excluded unless all defendants inthe case have been fugitives for more than one year. This table includes all felony and Class A misdemeanor cases, but includes only those petty offense cases that have been assigned todistrict judges. • Twelve-month period ending June 30. Source: Table D (Cases & Defendants), Annual Report of the Director: Judicial Business ofthe United States Courts. Table 5.2 U.S. District Courts-Criminal Cases Filed, by District (Including Transfers) I Fiscal Year Circuit and , District I 1990· 19951 2000: 2004 2005 2006 2007 2008 TOTAL 48,035 45,7881 62,7451 71,022 69,575 66,860 68,413 70,896 , 1 DC 636 451, 498' 462 380 407

1 I 1 1 1ST 1,110, 1,119 1,682 ' 1,398 1,286 1,327 1 1,352 1 1,336 1 ME 139 125 181 242 199 178. 194 216 MA 313 402 432 375', 378 342 378 373 NH 115 , 110 148 246' 212 273 224, 177 RI 1141 109 132 117 134 126 122 107 , PR 429 373 789 418 363 408, 434 463

2ND 2,933 3,526 3,661, 3,811 3,421 3,302 1 3,273 3,408 1 CT 251 200 236: 302 275 303 248 262 1 NY,N 514 5281 437 443 407 462 433 1 617 NY,E 959 1,117 1 1,096 1,016 817, 735 820 698 NY,S 917 1,216 1,267 1,267 1,153, 1,021 1,026 1,054 NY,W 274 3301 4201 598 583' 709 561 634

VT 99 , 149 114 191 150 127 156, 143 3RD 2,388, 2,583 3,1421 2,977 2,980 2,845 3,035, 3,056 1

1 DE 1391 105 97 156 1331 1261 176 196 NJ 705 831 881 1,021 1,026 1,032 1,004 1,037

1 PA,E 575 652 719 715! 701 627 713 701 1 1 PA,M 3141 317 359 428 509 447 488, 495 PA,W 246 252 302 381 461 493 530 543 VI 409 426 784 276 150 120 124 84

I 4TH 7,071 5,708 7,199 8,754 8,699 8,175 8,826 8,092

, MD 706 5121 1,165 1,408 1,541 1,7551 1,522 1,389 NC,E 1,161 678 889' 1,060 1,343 978 1,087 1,001 1 NC,M 301 3251 388 407 392 395 358 415 , 1 NC,W 495 493' 394 501 540 518 419 454 1 SC 666 649 674' 794, 775 821 885 818 1 VA,E 2,978' 2,429 3,011, 3,729 207 2,803 3,701 1 3,267 3, 1 VA,W 215' 280 319 403 397 374 320, 239 WV,N 184 107 127 206 273 278 305 264 1 WV,S 365 235 232 246' 2311 253 229 245

5TH 6,410 4,936 10,856 13,600 14,559 13,820 1 13,951 16,054 LA,E 416 288! 320 355 348 3181 414 320 LA,M 61 1 98 177 188 236 243 257 161 LA,W 240 243[ 244 425 484 502 353 310 MS,N 163 114 135: 157 132 152 173 122 1 MS,S 251 187, 365 421 345 460 421 450 1 TX,N 746 753 963' 800 747' 784 840 749 TX,E 286' 344 498 577 5851 662 664 642 1 TX,S 2,5631 1,381 3,720 6561 6,262 5,379 5,253 6,586 5, TX,W 1,6841 1,528 4,434 5,021 5,420 5,320 5,576 6,714 Table 5.2 (Continued) U.S. District Courts-Criminal Cases Filed, by District (Including Transfers) Circuit and Fiscal Year District 2004 2008

6TH 3,499 4,448\ 4,460 ! 214 442 360 427 452 552 KY,E 1 492 1 KY,W 415 578 593 627 742 815 762 1 1 1 MI,E 673 515 616 556 1 554 478 518 1 1 1 1 1 MI,W 182 305! 319 3651 346 359 333 OH,N 438 1 507 6581 690 592' 558 529 1 1 1 OH,S 499 491 554! 598 1 503 502 TN,E 409 1 517 466 425! 461 1 464 :; 1 TN,M 326 209! 259 287 262 250 257

TN,w 343 336 635 1 513 525 517!1 543 1 1, 7TH 2,324! 1,733 2,151 , 2,276\ 2,5021 2,390 2,3201 2,251 ! IL,N 521 700 7281 769 611 546 579 8281 , IL,C 259 231 295 366 384 374 464 349 ' 1 IL,S 203 225 317 188 229 1 243 237 205 1, 1 1 IN,N 201 20t 348 294 382 416 1 364' 428 1 IN,S 460 242 172 215 1 224! 232 180 200 287! WI,E 247 202 1 206 2801 288 340 1 311

1 WI,w 126 105 113 198 234 226 189 179 1 1 1 2,354! 8TH 2,902 3,4311 4,553 4,488 4,449 1 4,583

AR,E 265 256 1, 199 255 2911 334 363 AR,W 125 130 163 1 188 216 225! 205

1 1 IA,N 122 140 279 1 343 340! 312 1 542 lA,S 121 172 296 344 376' 437 354 1 1 MN 316! 247' 348!1 446 393 383 344 MO,E 270 432 647 883 829 872 890 1 MO,W 1,048 334 1 515 657, 725 638 589 NE 200 213 468,1 743 611 5841 618 1 NO 170 , 160 1781 257 280;1 2241 215 1 SO 265 270 338 437 427 440 463 1 1 1 1 9TH 10,0441 11,182 14,912,1 16,013 , 14,140 14,695 , AK 231 195! 223 181 166 158 178 171 1 1

1,142 4,545! 1 AZ 1,056 ' 3,117 4,0501 3,4461 4,349 3,145 CA,N 767 729 1,057 789 688! 661, 614 725

1 1 CA,E 580 893 1,0071 800 945 942 877 959 CA,C 1,407 ' , 1,050 1,1831 1,902 1,388 1,149 1 1,464 1,888 CA,S 1,665 2,290, 3,953!! 2,540 2,731 3191 4,036 3,431 'I 3, HI 1,751 1,003 477: 479 456 377 364, 567 1 1 10 1071 107 153 221 249 216 239 275 MT 236 1 409 429 435 518 408 448 413 1 NV 3201 330 , 518 659 615 1 4971 355 372 OR 439 6161 790 702 1 690 662 619 709 1 1 1 WA,E 506 45f 1 406! 5341 445, 393, 352' 361 WA,w 196 688 180 1,182 1 1,2321 1,0861 1,122 1 977 1, 1 1, 1 1, 1 GU 136, 170 112 92 131, 169 78 NMI 4' 21 ! 38 61 27 771 16 28 19 1 1 1 1 Table 5.2 (Continued) U.S. District Courts-Criminal Cases Filed, by District (Including Transfers) Circuitand Fiscal Year District 20041 2005 ' 2006 ' 20071 2008 1 10TH 2,742 6,543 6,577 6,6291 5,965 6,159

CO 4441 588 1 649 658 598 497 462 1 KS 336 489 810 7141 774 1 702 732 1 NM 939 720 2,6181 9151 2,826 2,392 '1 2,693 1, 1 2, OK,N 169 1 137 197! 205, 191 198 206 i 1 OK,E 65,1 80 138 93 67' 721 82 1 OK,w 4121 570 774 7091 881 736 1 8771 UT 2711 635' 1,077 042 952 915 973 I 1, 1 1 WY 106 1 143 280 241 340 312 275 , 1 11TH 6,371 6,034 6,1511 5,976 6,107, 6,0311, 6,395 1 AL,N 311 331 494 479 579 503 464

1 AL,M 293 1 249 230 267 283 259 1 1 274 [ AL,S 175 237 236 312 1 282 346 409 1 1 FL,N 245 1 290 509 454 1 538 533 508 1 1 FL,M 7951 808 1931 1,1481 1,243' 129 1,377 1, 1, 1 FL,S 1,4611 1,436 1,458 ' 1,5951 3731 1,608 1,763 1, 1 GA,N 492 811 778 1 641 ' 666 545 1 I 522) GA,M 2,217 1,500 708 500 495, 522 455 1 GA,S 382 372 545 1 580 648 594 615 1

• Twelve-month period ending June 30.

Source: Table 0 (Cases), Annual Report ofthe Director: Judicial Business ofthe United States Courts. Table 5.3 U.S. District Courts-Criminal Cases Filed, by Major Offense (Excluding Transfers) I Fiscal Year

Nature of Offense I 19951 2000 'I 2004! 2005 20061 2007 2008

, I I, TOTAL 45,0531 62,1521 70,397 i 68,996 66,3651 67,910 70,429 , I 1 VIOLENT OFFENSES, TOTAL 2,452 2,632 2,7011 2,4831 2,435 1 2,2641 2,232 Homicide 215 147 159 157 1 1321 120

! Robbery, Total 1,225, 1,256 1,201 1,058 911 899 Bank 1,165'1 1,218 1,174 976 1,019 881 868 Other Robbery Offenses 60 38: 27 28 39 30 31 , 1 I

1 1 Assault 619 845 1 935 1 928' 8281 813 773 Kidnapping 82 771 97 73 70 681 72 Racketeering - Violent 151, 171, 171 171 1 145! 176 173 831 Carjacking 1521 1021 85 89 95 1 115 1 1 Terrorism - 4 10 20 30 1 32 25 1 I 461 Other Violent Offenses 8 43 58 37 1 55 30/ 1, 1 , 1 , PROPERTY OFFENSES, TOTAL 13,214 13,457'1 11,8961 11,765! 12,621 12,048 61 59 54 38 41 33 Burglary 61! 1 Larceny and Theft, Total 3,3851 3,2761 2,7031 2,658 2,816 2,964 2,769 Bank 216 2721 96 82. 63 58 62 Postal Service 3121 441 3831 274'1 314 3041 269 Interstate Shipments 108 63 27' 34 301. 28 1 22 1 1 Theft-U.S. Property 2,026 1 1,8281 1,77 11 752 1,913 2,1401 2,024 1, 1 Theft-Maritime Jurisdiction 331 340 206 200 1901 175 137 1 Transportation, Etc., Stolen Property 318 1 240 150 132 129 128 130

1 1 1 Other Larceny and Theft Offenses 74 92 70 1 184 177 131, 125 I 1 1 I 1 1 Embezzlement, Total 1,256 1 1,096 772. 634 6641 5491 621 Bank 656 321 213 259 194 186 Postal Service 243 242 242 228 193 182 220 1 Financial Institutions 98 54 1 38 26 24 18 37 Other Embezzlement Offenses 191 ! 1441 171 167 ! 188 155 178

Fraud, Total 7,234 7,3161 7,397 1 7,1691 8,1011 7,746 Tax 783 516 574 514 520' 556 Financial Institutions 1,243 1 856 705 721 569 524

Securities and Exchange 52 95 1 101 65 70 1 66 Mail 941 1 5911 556 530,1 464 1 483 Wire, Radio, orTelevision 317 31 387 3401 298 1 40 3441 , Bankruptcy 98 741 87 72 1 72 52 1 Social Security 243 672 653 589 763 756 1 1 False Personation 47 30 48 40 56 47 Citizenship and Naturalization 67 242 290 1 184 179 222 1 Passport 233 449 1 381 298 352 476 1 Identification Documents and Information 771 I 665 1,0691 1,0771 1,943, 1,345 False Claims and Services-Government 272 168,.1 198 3551 242 192 False Statements 5421 916 832 1 669 638 796 Conspiracy to Defraud the United States 289 1 631 628 578 649 580 Unauthorized Access Devices 937 556 523 561 1 594 612 1 Computer 24 78. 104, 106 1 95 101 1 1 Health Care 240 2421 246 1 261 ! 322 Other Fraud Offenses 375 134 1 62' 177' 294 , 1 318 Table 5.3 (Continued) U.S. District Courts-Criminal Cases Filed, by Major Offense (Excluding Transfers) Fiscal Year Nature of Offense 2004 1 2005'1 20061 20071 2008 1 PROPERTY OFFENSES, TOTAL (Cont'd.) 1 1, Forgery and Counterfeiting 1,014 881 898 962 825 723 Auto Theft 109 54 23 28 26 28 Other Property Offenses 1551 109 101\ 133 115: 128 , 1 DRUG OFFENSES, TOTAL 11,475 18,414 11 18,198 17,429! 17,046 1 15,784 Marijuana, Total 3,292 5,746 4,994 4,818 5,040 4,418 Sell, Distribute, orDispense 1,6711 3,103 447 2,495 2,491 2,285 2, 1 Import/Export 323' 1,208 1,122 1,114 1,473 1,137 Manufacture 142 139 118 111 161 186 1 1

Possession 1,156 1,296 307 1 1,098 915 810 1, 1, ! 1 All Other Drugs, Total 8,041 ! 11,267 12,5301 13,102 12,534 11,953 ' 11,297 Sell, Distribute, orDispense 6,397 592 9,575 10,147 10,7321 10,442 9,954 8, 1 Import/Export 802 1 1,032 933 936 983 877 757 1 Manufacture 194 420 561 502 1 3321 199 223 Possession 648 1,223 1,461 1,517 4871 435, 363

1 Other Drug Offenses 142 101 138 1 1021 771 53 69 1, 1 FIREARMS AND EXPLOSIVES 1 OFFENSES, TOTAL 3,871 ! 5,615'1 9,6091 9,207 8,678 8,287 8,045 Firearms, Total 3,6651 5,410 9,4031 9,008 8,472 8,103 7,891 Possession by Prohibited Persons 1,454 3,137, 838 5,685 5,314 5,119 5,030 5, 1 , Furtherance of ViolenUDrug-Trafficking 1 Crimes 1,097 1,148 2,090 2,007!1 1,9621 1,7771 1,709 Other Firearms Offenses 1,114 1,125 1,475 1,316 1,196' 1,207 1,152 1 1 Explosives 206 205! 206 199 2061 184 154 1 SEX OFFENSES, TOTAL 4061 922 1 1,632 1,779 1,885 2,460 2,674 Sexual Abuse ofAdults 105 115 ! 123 98' 124 94 991 Sexual Abuse of Minors 167 237 359 333 373 409! 407 1 Sexually Explicit Material 85 1 453 930 1,102 1,156' 1,5441 1,691 Transportation for Illegal Sexual Activity 109, 211 1 251, 230 204 Other Sex Offenses 491 8, 9 7 153 278 1 JUSTICE SYSTEM OFFENSES, TOTAL 1,079! 1,061,1 1,092 979! 961 884 993 Aiding, Abetting, Accessory, Etc. 189 151 194 215 1 196, 16°1 193 Obstruction of Justice 166 1 159 203 208 1 2231 203 180

Escape from Custody 281 233 264 1 247 251 235 310 1 Failure toAppear 289 1 299 267' 183 182 186 225 Perjury 85' 113! 80 62 54 48 41 Contempt 691 1061 84 64 55 52 44

, IMMIGRATION OFFENSES, TOTAL 3,960 12,163 1 17,033 17,1341 16,353! 16.7221 21,313 Alien Smuggling 678 1,949 2, 5061 2,728' 2,7141 2,6881 2, 79 Improper Entry byAlien 410 2,546 2,602 2,0001 1,100! 157 1,779 1, 1 Improper Reentry byAlien 2,649 188 11,241 11,648 11,827 12,315 15,626 7, 1 1 1 Fraud and Misuse ofVisa/Permit 209! 354 506 7191 679 533! 1,080

Other Immigration Offenses 14 126 178 391 33 1 29 49 1 1 Table 5.3 (Continued) U.S. District Courts-Criminal Cases Filed, by Major Offense (Excluding Transfers) Fiscal Year Nature of Offense 2004 20051 20061 2007 1 2008

GENERAL OFFENSES, TOTAL 1,694' 2,510' 1,685 1,527 1,5391 1,659 Bribery 213 145 144 123 136 95 122 Money Laundering 570!1 623 645 589' 588 545 552 RICO· 54 37 1 29 29' 28 18 22

1 Racketeering - General 35 45 33 40, 27 42 1 1 Extortion and Threats 185 174 165 180 1 138 124 1 Gambling and Lottery 89 921 381 52 25 21 22 Failure toPay Child Support 35 291 961 92 80 75 91 1,103 1 709 580 510 620 Other General Offenses 513 1 684

1 REGULATORY OFFENSES, TOTAL 1,688 1,664 1,56811 1,6261 1,661 1,660 1,692 Civil Rights 74 80 58' 81! 74 ' 771 83 Copyright 11 - ! 56 1 38 72 Food and Drug 51 48 421 41 51 55 34 Hazardous Waste Treatment, Disposal, 1 and Storage 43 271 19 27 23 29 30 Telegraph, Telephone, and Radiograph 171 43! 26 11 11 15 8 1 28 29 National Defense 18 20 17 29 1. 38 Antitrust 38 43 121 25 18 I 16 ' 21 Labor 831 134 651 75 85 I 681 72 Game and Conservation 188 132 136 141 217 221 ' 217 1 1 National Parks 204 174 118, 104 1 103 132 111 Customs 96 96 75 1 551 44 51 78 Postal Service 1991 112,1 116 104 105 103 108 Reporting of Monetary Transactions 213 242 226 231 189 210 196 1

! Migratory Bird 26 52 81 1 691 38, 65 51

Maritime and Shipping 67 73 60 88: 94 'I 981 100 1 Aircraft Regulations 12 57 134 1 88 84 69 : 69

1 457 431 385 413 Other Regulatory Offenses 348 1 331 383

1

TRAFFIC OFFENSES, TOTAL 1 5,214 1 4,6791 593 4,140 3,626 4,427 3,989 4, 1 Drunk Driving 1,507 1,250 1,439 1,8081 1,545 1,583 1,472

Other Traffic Offenses 3,707 3,429 3,154 2,332 1 2,081 I 2,844 1 2,517

• RICO =Racketeer Influenced and Corrupt Organizations

Note: In 2005, the classification ofcriminal filings was amended tocategorize more accurately the major offenses charged. Data inthis table reflect these revisions. Therefore, data for earlier years are not comparable tothe data inthe current year's Annual Report ofthe Director: Judicial Business of the United States Courts.

Source: Table D-2 (Cases) Annual Report ofthe Director: Judicial Business ofthe United States Courts. In 2005, the classification ofcriminal filings was amended tocategorize more accurately the major offenses charged. All data on this table reflect these revisions. Therefore, data forearlier years are not comparable tothe data in that year's Annual Report of the Director: Judicial Business ofthe United States Courts. Table 5.4 U.S. District Courts-Criminal Defendants Filed, by Major Offense (Excluding Transfers) I Fiscal Year Nature of Offense I 1995 2000 2004 2005', 2006 2007 2008 1 1 TOTAL 63,986 1 83,3031 92,697 91,6321 87,699 88,780 91,866

VIOLENT OFFENSES, TOTAL 3,050 3,277! 3,3891 3,0921 2,950'1 2,837 2,853 Homicide 275' 174 1901 204! 185 147 146 1 I Robbery, Total 1,4081 1,506 1,425 1,1811 1,223 1,0761 1,099 Bank 1,332 1,460 I 1,387 1,139' 1,171 1,0321 1,065 Other Robbery Offenses 76 46' 38 42 52 441 34 1

Assault 698 940 1 1,027, 98B BB5' B50 1, B731 Kidnapping 13B 12B 205 137 13B 130! 142 Racketeenng - Violent 295 329 345 1 364, 25B 351 347 15B 134 132 1 160' 173 Terrorism 5 26 1' 59 59 25 Other Violent Offenses 16' 37, 53 5B 69 41 1 71

PROPERTY OFFENSES, TOTAL 17,0231 17,177 15,5651 15,292 15,379, 16,277 1 15,771 Burglary 5, 76 57 5 B31 Larceny and Theft, Total 3,975, 3,775 3,0521 3,od 3,116 3,3451 3,067 Bank 239 290 100 96! 72 70 B1 Postal Service 414 603 500 3B7 401 4361 345 Interstate Shipments 193 1 135 46 561 44 391 39 Theft-U.S.Property 1B31 1,925 1,B67 1,859! 2,022 2,25B : 2,145 Theft-Maritime Jurisdiction 2,34B 350 217 207 192 145 1 20BI I Transportation, Etc., Stolen Property 520 3BO 251 21B 210 1B3 1 1771 Other Larceny and Theft Offenses 92 1BB 193 140 129 7BI 71 'I 1 1 Embezzlement, Total 1,31B 1,171 B37' 710 , 719 60B, 6B1 Bank 745 674 225 263 19BI 188 1 Postal Service 24B 249 24433BI 232, 196 1B5' 221 Financial Institutions 102! 54: 38 26 26 20 37 Other Embezzlement Offenses 223 194 217 227 1 234 205 235 1 1

1 Fraud, Total 9,B50 1 10,034! 10,03BI 9,929 9,B181 10,804 10,6BO Tax 905, 654 5641 644, 5B8 570 622 Financial Institutions 1,5991 1,661 1,250 016 994 779 74B 1, 1 Securities and Exchange BO! 256 173 1' 142 97 112 ,1 91 Mail 1,511 942 1 995 BB3 770 65B , 762 535,1 Wire, Radio, orTelevision 537 1' 515 559 495 531 49B Bankruptcy 120 157 1 B3 1 112 B3 62 1 1 B91 Social Security 2B9 76B[ B041 73BI 651 , B17 1 956 False Personation 47,1 43 30, 49 45 57 1 47 Citizenship and Naturalization 70' 367 243 3071 193 1911 226

Passport 2421 292 46B 394 1 304 35BI 4B3 Identification Documents and Information B56 721 1 B33 1,33B ' 1,35B 1B5 1,591 1' 2, 1 False Claims and Services-Govemment 431 233 242 259 I 440 294 252 False Statements 6B2 65BI 1,037,1 960 7B6 747 B99 Conspiracy to Defraud the United States 552 1,393' 1,27BI 1,168 1,2621 1,34 91 1,175 Unauthorized Access Devices 1,259 B49 B101 744 1 B23 , B71 BB3 Computer 3D, 92 94 115' 125 10B' 115 Health Care J, 310 413 1 447 391 4151 4B2 Attempt and Conspiracy to Defraud 4BI 1BB,1 235 540' 716

1 Other Fraud Offenses 123 , 162 132, 139 72 6401 1 11B! 1 Table 5.4 (Continued) U.S. District Courts-Criminal Defendants Filed, by Major Offense (Excluding Transfers) Fiscal Year Nature of Offense 2004 2005 2008

PROPERTY OFFENSES, TOTAL (Cont'd.) 1 Forgery and Counterfeiting 1,7781 1,468\ 1,080 Auto Theft 164 42 62 Other Property Offenses 180 161 149

DRUG OFFENSES, TOTAL 30,567

Marijuana, Total ,7 I Sell, Distribute, orDispense 181 4, 1 Import/Export 1,260 Manufacture 188: Possession 1,135)

All Other Drugs, Total 16,948 23,693 22,572 Sell, Distribute, orDispense 14,451 21,289. 20,571 Import/Export 1,211 259 1,012 1, 1 Manufacture 403 630 609 Possession 883 515 380

Other Drug Offenses 189 220 110 71 97

FIREARMS AND EXPLOSIVES OFFENSES, TOTAL Firearms, Total Possession byProhibited Persons Furtherance ofViolenUDrug- Trafficking Crimes 657 2,447 2,255 Other Firearms Offenses 2,1,755 1 1,457 1,339

Explosives 2731 200

SEX OFFENSES, TOTAL 1,6901 Sexual Abuse ofAdults Sexual Abuse of Minors 1691 3851 Sexually Explicit Material 86 942 Transportation forIllegal Sexual Activity -I1 225 Sex Offender Registry 1 Other Sex Offenses 551

JUSTICE SYSTEM OFFENSES, TOTAL 1,3141 Aiding, Abetting, Accessory, Etc. 275 Obstruction ofJustice 253 246 Escape from Custody 295 1 243 Failure toAppear 295 300 1 110 135 Contempt 86 1 111 1

1 IMMIGRATION OFFENSES, TOTAL 4,472 13,067,I

Alien Smuggling 2, I Improper Entry byAlien 2,588 Improper Reentry byAlien 7,196 1 Fraud and Misuse of Visa/Permit 406 Other Immigration Offenses 134 1 Table 5.4 (Continued) U.S. District Courts-Criminal Defendants Filed, by Major Offense (Excluding Transfers) I I Fiscal Year Nature of Offense I 1995 20001 2004 2005 20061 20071 2008

i " GENERAL OFFENSES, TOTAL 2,709 3,8381 3,0151 2,800 2,585'1 2,373 2,512 Bribery 2B8 'j27 rsa 182 182 1 148 173 Money Laundering 1,183 1,443 1,491 1,303 347 1,121 1,082 RICO· 193 139 139 159' 1,173 1 150 Racketeering - General 51 55 48 72 49 61 Extortion and Threats 243 236 204 2221 150 1 176 155 Gambling and Lottery 1821 213 108 159 99 Failure to Pay Child Support 35 292 96' 92 91 Other General Offenses 534 1,133 1 7311 611 701

1' REGULATORY OFFENSES, TOTAL 2,205 Civil Rights 1 8 Copyright 97 11 ' 1 Food and Drug 68 511 44 61

1 Hazardous Waste Treatment, Disposal, 1 1 and Storage 64 27 37 301 41 Telegraph, Telephone, and Radiograph 19 31 1 11 20 8 National Defense 32 21 41 541 45 Antitrust 48 22 371 32 29 Labor 87 70 91 79 1 1 78) Game and Conservation 267 200 202 274] 262 National Parks 2521 127 1 112 120

i 11°1 1 Customs 151 1051 79 60 , 108 Postal Service 210 1181 110 106 109 Reporting of Monetary Transactions 266 310 292 244 245

1 1 Migratory Bird 48 107 1 52 161 Maritime and Shipping 961 110 129 99 1 Aircraft Regulations 16 139 96 91 75 1 1 452 Other Regulatory Offenses 429 4151 506 1 472 1

1 1 TRAFFIC OFFENSES, TOTAL 5,2161 4,595 1, 4,142 3,627' Drunk Driving 1,50 1, 1, otherTraffic Offenses 3,707 3,156 2;3331 2,081

• RICO = Racketeer Influenced and Corrupt Organizations.

Note: In2005, the classification ofcriminal filings was amended tocategorize more accurately the major offenses charged. Data inthis table reflect these revisions. Therefore, data forearlier years are notcomparable to the data inthe current year's Annual Report of the Director. Judicial Business ofthe Unfted States Courts.

Source: Table 0-2(Defendants), Annual Report ofthe Director. Judicial Business ofthe Unfted States Courts. Table 5.5 U.S. District Courts-Criminal Defendants Disposed of, by Method ofDisposition (Excluding Transfers) Not Convicted Convicted and Sentenced Fiscal Total IPercent ofTotall I ACQuitted by I Percent of I Plea of I Convicted by Year Defendants Total Defendants Dismissed I Court Jury Total Total Guilty* I Court Jury 1990** 55,267 9,747 18% 8,231 612 904 45,520 82% 39,690 979 4,851 1995 54,980 8,207 15% 7,112 482 613 46,773 85% 43,103 467 3,203 2000 75,071 8,035 11% 6,992 603 440 67,036 89% 63,863 632 2,541 2004 81,717 8,101 10% 7,465 239 397 73,616 90% 71,028 312 2,276 2005 86,000 8,661 10% 8,141 159 361 77,339 90% 74,024 291 3,024 2006 87,985 8,260 9% 7,755 141 364 79,725 91% 76,610 245 2,870 2007 88,014 9,153 10% 8,651 174 328 78,861 90% 75,949 323 2,589 2008 91,390 8,939 10% 8,400 184 355 82,451 90% 79,842 244 2,365 * Includes nolo contendere cases. ** Twelve-month period ending June 30. Source: Table D-4, Annual Report ofthe Director: Judicial Business of the United States Courts. Table 6.1 U.S. District Courts- Total Civil and Criminal Cases Filed, Terminated, and Pending (Including Transfers) Fiscal Authorized District Court Caseload Year Judgeships Filed Terminated Pending 1990· 575 263,202 256,962 280,482

1995 649 296,224 275,319 273,402 2000 655 322,225 318,355 300,928 2004 679 352,360 317,382 351,672 2005 678 322,848 338,314 335,130 2006 678 326,401 340,692 321,125 2007 678 325,920 307,529 337,560 2008 678 338,153 305,200 371,814

• Twelve-month period ending June 30.

Source: Text tables, Table C, Table D-1 (Cases) (1990), and Table D (Cases), 1995, 2000, and 2004-2008, Annual Report of the Director: judicial Business of the United States Courts. Table 6.2 U.S. District Courts-Total Weighted and Unweighted Filings per Authorized Judgeship Weighted Filings Unweighted Filings Supervised Supervised Fiscal Authorized Release Release Year Judgeships1 Total Civil Criminal Hearings2 Total Civil Criminal Hearings2 1990 3 575 427 285 142 - 448 364 85 - 1995 649 448 320 128 - 444 364 80 - 2000 655 486 383 103 - 505 378 127 - 2004 679 529 414 111 4.14 545 379 137 28.76 2005 678 489 374 111 4.23 511 346 135 29.41 2006 678 464 354 106 4.48 482 321 130 30.94 2007 678 477 366 106 4.72 495 331 131 32.44 2008 678 472 359 109 4.87 494 325 136 33.41

Note: Weighted filings for1990 and 1995 were derived from the 1987-1993 district court time study by the Federal Judicial Center (FJC). Weighted filings for 2003 have been revised based on the current case weights developed through the FJC's 2003-2004 district court case weighting study. Criminal filings include reopens and transfers. For 1990 and 1995, criminal weighted filings excluded felony defendants. Civil cases reopened, remanded, ortransferred tothe district by order ofthe Judicial Panel on Multidistrict Litigation are excluded.

, Authorized judgeships include territorial courts, although data forthese courts are not reflected in the total weighted filings per authorized judgeship. Territorial courts are excluded from the district court case weight studies.

2 Beginning in 2002, supervised release hearings are included inweighted filing totals.

3 Twelve-month period ending June 30.

Source: Text table 11 and Table X-1A, Annual Report ofthe Director: JUdicial Business of the United States Courts. Table 6.3 U.S. District Courts-Median Times Intervals in Months From Filing to Disposition ofCivil and Criminal Cases Civil Criminal Court Action Fiscal Overall Civil No Court Before IDuring orAfter I Year Median Action Pretrial Pretrial 1 Trial2 All Defendants Dismissed Guilty Plea Court Trial Jury Trial 1990 3 8 6 7 14 19 4.6 3.6 4.4 0.1 7.2 1995 8 7 7 13 18 5.7 6.5 5.4 1.6 9.6 2000 8.2 7.9 7.8 13.6 20.1 5.9 5.8 5.8 0.1 10.9 2004 8.5 7.5 7.8 13.2 21.1 6.4 5.9 6.2 4.8 12.1 2005 9.5 7.0 9.5 13.1 21.8 6.8 6.2 6.6 7.3 14.0 2006 8.3 6.3 7.2 33.9 23.5 7.1 6.5 6.9 6.7 15.7 2007 9.6 6.9 8.6 14.2 128.2 7.0 9.0 6.8 6.1 14.4 2008 8.1 5.0 7.8 13.6 32.9 6.8 6.9 6.6 7.2 14.4 Note: Prior to2000, civil median disposition time intervals were rounded towhole months.

1The significant increase inmedian disposition time forcivil cases closed bycourt action during orafter pretrial in2006 resulted from the termination ofmore than 15,000 breast implant cases originally filed in 1998 inthe Eastern District ofMichigan.

2 The substantial increase in2007 resulted from the disposition ofmore than 6,300 oil refinery explosion cases inthe Middle District ofLouisiana that had been pending more than 10years.

3 Twelve-month period ending June 30. Source: Table C-5 and Table 0-6, Annual Report ofthe Director: Judicial Business ofthe United States Courts. Table 6.4 U. S. District Courts-Civil and Criminal Trials Completed Civil Criminal

Fiscal Year Grand Total Total Nonjury Jury Total Nonjury Jury 1990· 20,393 11,446 6,674 4,772 8,947 3,875 5,072 1995 17,816 10,395 6,146 4,249 7,421 3,176 4,245 2000 14,679 7,933 4,529 3,404 6,746 3,257 3,489 2004 12,938 5,492 3,081 2,411 7,446 3,672 3,774 2005 12,771 5,294 2,982 2,312 7,477 3,709 3,768 2006 12,612 5,121 3,024 2,097 7,491 4,125 3,366 2007 13,449 5,600 3,331 2,269 7,849 4,636 3,213 2008 13,256 5,283 3,108 2,175 7,973 4,823 3,150

Note: Includes trials conducted by district and appellate judges only. All trials conducted by magistrate judges are excluded. Includes hearings on temporary restraining orders and preliminary injunctions, hearings on contested motions, and other contested proceedings in which evidence isintroduced. Civil trials include trials ofmiscellaneous cases.

• Twelve-month period ending June 30.

Source: Table C-7, Annual Report ofthe Director: Judicial Business of the United States Courts. Table 6.5 U. S. District Courts-Lengths ofCivil and Criminal Trials Completed Civil Criminal Fiscal Total All 4to 9 10to 19 20 Days 4to 9 10to 19 20 Days Year Trials Total 1 Day 2 Days 3 Days Days Days orMore Total 1 Day 2 Days 3 Days Days Days orMore

1990* 20,393 11,446 4,883 2,242 1,445 2,442 349 85 8,947 3,939 1,707 1,190 1,727 281 103

1995 17,816 10,395 4,718 1,732 1,256 2,288 338 63 7,421 3,173 1,249 939 1,653 297 110

2000 14,679 7,933 3,639 1,209 976 1,831 238 40 6,746 3,260 1,135 832 1,227 222 70

2004 12,938 5,492 2,252 876 696 1,446 196 26 7,446 3,553 1,362 898 1,347 205 81

2005 12,771 5,294 2,240 800 657 1,367 194 36 7,477 3,662 1,308 924 1,270 227 86

2006 12,612 5,121 2,381 748 541 1,217 207 27 7,491 4,055 1,147 846 1,185 184 74

2007 13,449 5,600 2,822 712 588 1,254 198 26 7,849 4,552 1,081 731 1,230 180 75

2008 13,256 5,283 2,652 673 561 1,194 182 21 7,973 4,786 1,016 760 1,144 206 61

Note: Includes trials conducted bydistrict and appellate judges only; all trials conducted by magistrate jUdges are excluded. Includes trials ofmiscellaneous cases, hearings on temporary restraining orders and preliminary injunctions, hearings on contested motions, and other contested proceedings in which evidence isintroduced.

* Twelve-month period ending June 30.

Source: Table C·8, Annual Report ofthe Director: Judicial Business of the United States Courts. Table 6.6 U.S. District Courts-Cases and Defendants Terminated bySenior, Visiting, and Magistrate JUdges DistrictCourt Terminations Assistance to Courts Provided By Vacant Magistrate Judges Authorized Judgeship Criminal Senior Visiting Section 636 (c) Fiscal Year Judaeshlns Months Total CivilCases Defendants Total Judaes 1 Judges 2 Consent Cases

1990 3 575 540.1 275,082 214,435 60,647 39,350 32,878 1,514 4,958

1995 649 642.0 287,095 229,820 57,275 49,459 38,833 1,659 8,967

2000 655 597.5 336,822 259,637 77,185 69,526 55,726 2,319 11,481

2004 679 303.3 336,367 252,761 83,606 68,796 53,752 1,952 13,092

2005 678 309.2 358,369 271,753 86,616 69,129 54,358 2,489 12,282

2006 678 399.3 361,794 273,193 88,601 72,417 58,366 2,530 11,521

2007 678 427.7 346,814 257,507 89,307 72,762 53,412 8,775 10,575

2008 678 397.9 359,074 267,257 91,817 69,492 54,988 3,690 10,814

1 Does not include the work of senior circuit judges in the district courts during each time period. 2 Includes senior judqes, 3 Twelve-month period ending June 30. Source: Text table 11; unpublished senior judge activity report; Table C, Table D-1 (Defendants), Table M-5, and Table V-1, Annual Report of the Director: Judicial Business ofthe U.S. Courts. Table 7.1 U.S. Bankruptcy Courts-Bankruptc Petitions Filed, Terminated, and Pendin

Fiscal Year Filed Terminated Pending

1990 1 749,981 637,118 993,346

1995 883,457 892,796 1,101,089

2000 1,262,102 1,256,874 1,383,213

2004 1,618,987 1,671,177 1,658,238

2005 1,782,643 1,581,287 1,859,437

2006 1,112,542 1,619,142 1,349,241

2007 801,269 864,588 1,298,016

2008 1,042,993 975,296 1,343,538

Note: The general effective date of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) was October 17,2005.

1 Twelve-month period ending June June 30.

Source: Table F, Annual Report of the Director: Judicial Business of the United States Courts. Table 7.2 U.S. Bankruptcy Courts-Voluntary and Involuntary Cases Filed, by Chapter ofthe Bankruptcy Code Voluntary Involuntary 1 Fiscal Year Total Filings Total Chapter 7 Chapter 11 Chapter 122 Chapter 13 Total Chapter 7 Chapter 11

1990 3 749,981 748,344 520,047 19,741 1,320 207,211 1,637 1,311 326

1995 883,457 882,315 597,302 12,445 883 271,650 1,142 948 194

2000 1,262,102 1,261,372 870,183 9,728 551 380,880 730 4 622 107

2004 1,618,987 1,618,385 1,153,334 10,297 238 454,412 602 531 71

2005 1,782,643 1,782,080 1,345,723 6,552 364 429,316 563 478 85

2006 1,112,542 1,112,064 832,758 5,914 376 272,937 478 389 89

2007 801,269 800,728 483,750 5,759 361 310,802 541 412 129

2008 1,042,993 1,042,233 679,507 8,514 332 353,828 760 475 285

Note: The general effective date ofthe Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) was October 17, 2005.

1 Totals may include cases filed under provisions ofthe Bankruptcy Code other than chapters 7, 11, 12, or 13.

2 In 2005, BAPCPA made chapter 12a permanent part ofthe bankruptcy code and added debts offamily fishermen to the chapter. 3 Twelve-month period ending June 30. 4 Total includes one case filed under Section 304 and not reported under chapter 7orchapter 11.

Source: Tables F-2A and F-2B (unpublished). Table 7.3 U. S. Bankruptcy Courts-Business and Nonbusiness Bankruptcy Cases Filed, by Chapter ofthe Bankruptcy Code Total Filings Business Filings 1 Nonbusiness Filings 1 Fiscal Chapter Chapter Chapter Chapter Chapter Chapter Chapter Chapter Chapter Chapter Chapter Year Total 2 7 11 123 13 Total 2 7 11 12 3 13 Total 2 7 11 13

1990 4 749,981 521,358 20,067 1,320 207,211 64,552 36,687 17,789 1,320 8,731 685,429 484,671 2,278 198,480

1995 883,457 598,250 12,639 883 271,650 51,042 28,800 11,168 883 10,156 832,415 569,450 1,471 261,494

2000 1,262,102 870,805 9,835 551 380,880 36,065 20,687 9,135 551 5,661 1,226,037 850,118 700 375,219

2004 1,618,987 1,153,865 10,368 238 454,412 34,817 20,243 9,436 238 4,799 1,584,170 1,133,622 932 449,613

2005 1,782,643 1,346,201 6,637 364 429,316 34,222 23,313 5,776 364 4,649 1,748,421 1,322,888 861 424,667

2006 1,112,542 833,147 6,003 376 272,937 27,333 18,258 5,345 376 3,277 1,085,209 814,889 658 269,660

2007 801,269 484,162 5,888 361 310,802 25,925 16,914 5,317 361 3,281 775,344 467,248 571 307,521

2008 1,042,993 679,982 8,799 332 353,828 38,651 26,578 7,962 332 3,727 1,004,342 653,404 837 350,101

Note: The general effective date ofthe Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) was October 17, 2005.

1 Section 101 ofthe U.S. Bankruptcy Code defines consumer (nonbusiness) debt asthat incurred byan individual primarily fora personal, family, orhousehold purpose. Ifthe debtor isa corporation orpartnership, orifdebt related tooperation ofa business predominates, the nature ofdebt is business.

2 Totals may include cases filed under provisions ofthe Bankruptcy Code other than chapters 7, 11, 12, or 13.

3 In2005, BAPCPA made chapter 12 a permanent part ofthe bankruptcy code and added debts offamily fishermen tothe chapter.

4 Twelve-month period ending June 30.

Source: Statistical Table F-2 (1990 to present), Annual Report ofthe Director: Judicial Business ofthe United States Courts.

EXHIBIT 12 Capturing Failure - Footnote XII http://www.tmcglaw.com/capturingfailure/xii.html

by William McGrane Footnote XII Bankruptcy laws have historically provided creditors with the opportunity to file an involuntary bankruptcy petition against most debtors under certain clearly defined circumstances. Thus: The central policy behind involuntary petitions was to protect the threatened depletion of assets or to prevent the unequal treatment of similarly situation (sic) creditors. Whenever this situation is implicated, bankruptcy policy dictates that a creditor be able to compel liquidation or reorganization of the Debtor’s estate through an involuntary petition. In re Manhattan Industries, Inc., 224 B.R. 195, 200 (Bankr. M. D. Fla. 1997) (citing to 1 Norton Bankr. L. & Prac. 2d § 21:10 (1997)). The statutory authority for creditors to place a debtor into bankruptcy involuntarily is provided under 11 U.S.C. § 303, which reads, in pertinent part: (a) An involuntary case may be commenced only under chapter 7 or 11 of this title, and only against a person, except a farmer, family farmer, or a corporation that is not a moneyed, business, or commercial corporation, that may be a debtor under the chapter under which such case is commenced. (b) An involuntary case against a person is commenced by the filing with the bankruptcy court of a petition under chapter 7 or 11 of this title—(1) by three or more entities, each of which is either a holder of a claim against such person that is not contingent as to liability or the subject of a bona fide dispute as to liability or amount, or an indenture trustee representing such a holder, if such noncontingent, undisputed claims aggregate at least $14,425 more than the value of any lien on property of the debtor securing such claims held by the holders of such claims; (2) if there are fewer than 12 such holders, excluding any employee or insider of such person and any transferee of a transfer that is voidable under section 544, 545, 547, 548, 549, or 724 (a) of this title, by one or more of such holders that hold in the aggregate at least $14,425 of such claims …. ”

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EXHIBIT 13 Capturing Failure - Footnote XIII http://www.tmcglaw.com/capturingfailure/xiii.html

by William McGrane Footnote XIII The issue of whether a claim is contingent as to liability is straightforward. “Claims are contingent as to liability when the debtor’s duty to pay arises only upon the occurrence of a future event that was contemplated by the parties at the time of the contract’s execution.” In re Seko Investment, Inc., 156 F.3d 1005, 1008 9th Cir. 1998). Most of the published cases address debtor challenges on the bona fide dispute issue. See, e.g., In re Whiteside, 238 B.R. 468, 470 (Bankr. W.D. Mo. 1999) (petitioners failed to show absence of bona fide dispute regarding claim of one of three petitioners); In re Bayshore Wire Products Corp., 209 F.3d 100, 104 (2nd Cir. 2000) (same); Manhattan Industries, 224 B.R. at 200. In determining whether a petitioning creditor’s claim is subject to a bona fide dispute the bankruptcy court need not determine the outcome of the dispute but merely that there is an objective basis for either a legal or factual dispute as to the validity or amount of the claim. Manhattan Industries, 224 B.R. at 199; In re Everett, 178 B.R. 132, 140 (Bankr. N.D. Ohio 1994); Whiteside, 238 B.R. at 470. The majority of courts have adopted an objective test for determining whether a bona fide dispute exists. In re Atlantic Portfolio Analytics & Mgmt., Inc., 380 B.R. 266, 272-73 (Bankr. M.D. Fla. 2007). Under an objective test, “a bona fide dispute exists ‘[i]f there is a genuine issue of material fact that bears upon the debtor’s liability, or a meritorious contention as to the application of law to disputed facts ….’” Id. at 273 (quoting B.D.W. Assocs., 865 F.2d 65, 66-67 (3rd Cir. 1989). The petitioning creditor has the initial burden of proof to establish that a bona fide dispute does not exist. One that is established the burden shifts to the debtor to demonstrate that a bona fide dispute does exist. Atlantic Portfolio, 380 B.R. at 273; Manhattan Industries, 224 B.R. at 200. Finally, in the 2005 amendments to the Bankruptcy Code section 303(b) was modified such that “bona fide dispute” refers to disputes “as to liability or amount.” In light of that amendment if there is an objective dispute regarding the amount of a petitioning creditor’s claim it will be sufficient to establish a bona fide dispute under § 303(b). In re Mountain Dairies, Inc., 372 B.R. 623, 633-34 (Bankr. S.D.N.Y. 2007).

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EXHIBIT 14 Capturing Failure - Footnote XIV http://www.tmcglaw.com/capturingfailure/xiv.html

by William McGrane Footnote XIV The statutory authority allowing a court to abstain is provided under 11 U.S.C. § 305, which reads, in pertinent part: (a) The court, after notice and a hearing, may dismiss a case under this title, or may suspend all proceedings in a case under this title, at any time if-- (1) the interests of creditors and the debtor would be better served by such dismissal or suspension . . . While some early cases read section 305 very narrowly and held that a court could only abstain when certain specific factors mentioned in the legislative history were present, see, e.g., In re RAI Marketing Serv., Inc., 20 B.R. 943 (Bankr. D. Kan. 1982), the vast majority of cases apply a broad test under which the court examines a wide variety of factors before exercising its discretion to abstain. See In re Spade, 258 B.R. 221, 228-30 (Bankr. D. Col. 2001) (and cases cited therein); In re Macke Int’. Trade, Inc., 370 B.R. 236, 247 (9th Cir. BAP 2007) (“The analysis as to whether ‘the interests of creditors and the debtor would be better served by such dismissal’ is based on the totality of circumstances”). However, and particularly because an abstention order is not reviewable by courts of appeal, abstention is only applied in “extraordinary” circumstances. Macke, 370 B.R. at 247; In re Forest Hill Funeral Home & Mem’l Park – East, LLC., 364 B.R. 808, 824 (Bankr. E.D. Okla. 2007). The decision of whether to abstain rests with the sound discretion of the bankruptcy court. Id.

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EXHIBIT 16 Capturing Failure by William McGrane

Footnote XVI

In addition to the requirement that petitioning creditors establish that their claims are not contingent to liability or the subject of a bona fide dispute, if the debtor contests the involuntary petition the petitioning creditors must establish that the debtor is generally not paying its debts. 11 U.S.C. § 303(h) provides:

If the petition is not timely controverted, the court shall order relief against the debtor in an involuntary case under the chapter under which the petition was filed. Otherwise, after trial, the court shall order relief against the debtor in an involuntary case under the chapter under which the petition was filed, only if—(1) the debtor is generally not paying such debtor’s debts as such debts become due unless such debts are the subject of a bona fide dispute as to liability or amount; or (2) within 120 days before the date of the filing of the petition, a custodian, other than a trustee, receiver, or agent appointed or authorized to take charge of less than substantially all of the property of the debtor for the purpose of enforcing a lien against such property, was appointed or took possession.

Litigation has typically focused on the first clause, namely, whether a debtor is generally not paying its debts. Before a bankruptcy court can enter an order for relief in an involuntary case it must make a threshold inquiry of whether the alleged debtor is generally not paying its debts as they become due. In re Cannon Express Corp., 280 B.R. 450, 454 (Bankr. W.D. Ark.); In re Law Center, 261 B.R. 607, 610 (Bankr. M.D. Pa. 2001). Petitioning creditors have the burden of proving that an alleged debtor is generally not paying its debts as such debts become due. In re St. Marie Development Corp. of Montana, Inc., 334 B.R. 663, 670 (Bankr. D. Mont. 2005). The statute requires more than “merely establishing the existence of unpaid debts.” Id. Rather it requires a “more general showing of the debtor’s financial condition and debt structure. Id. Courts apply a totality of circumstances test in determining whether an alleged debtor is generally not paying its debts as they become due, considering such factors as (i) the number of unpaid claims, (ii) the amount of the claims, (iii) the materiality of non-payment and (iv) the overall conduct of the debtor’s financial affairs. Atlantic Portfolio, 380 B.R. at 274; Whiteside, 238 B.R. at 471. As a general statement “not paying debts” includes regularly missing a significant number of payments to creditors, or regularly missing payments which are significant in amount in relation to the size of the alleged debtor’s operations. In re West Side Community Hospital, Inc., 112 B.R. 243, 257 (Bankr. N.D. Ill. 1990). Thus, it is not sufficient to rely on the claim or belief of a petitioning creditor that an alleged debtor is not paying its debts. Petitioning creditors must adduce concrete evidence that an alleged debtor is not paying debts as they become due, such as unpaid bills, demand letters, lawsuits or other proof of an obligation with a date certain that has not been paid. Whiteside, 238 B.R. at 471. Nor is it sufficient to review a few 10-Q’s and decide a company is “in trouble.” Cannon Express Corp., 280 B.R. at 454, 456. A reasonable person should take steps to investigate whether a company is generally paying its debts before filing an involuntary petition, such as hiring an expert to review the financial condition of the alleged debtor or contacting other creditors. Id.

EXHIBIT 17 Capturing Failure - Footnote XVII http://www.tmcglaw.com/capturingfailure/xvii.html

by William McGrane Footnote XVII With respect to whether to award attorneys’ fees and costs, some courts have held or at least suggested that when an involuntary petition is dismissed there is a rebuttable presumption in favor of the debtor that fees and costs should be awarded. “Sec. 303(i)(1) raises a rebuttable presumption in favor of the Debtor that fees and costs are authorized. The involuntary debtor bears the burden of showing the fees requested are reasonable. It is then the petitioning creditors’ burden to establish, under the totality of the circumstances, that factors exist which overcome the presumption, and support the disallowance of fees.” In re Ballato, 252 B.R. 553, 558 (Bankr. M.D. Fla. 2000). See also, St. Marie Development, 334 B.R. at 673 (“there is some authority to support the proposition that an award is appropriate in all cases where the Debtor successfully defended against an involuntary Petition”); In re Silverman, 230 B.R. 46, 50-51 (Bankr. D. N.J. 1998) (finding a rebuttable presumption). However, not all courts agree with this notion. In In re Allied Riser Communications Corp., 283 B.R. 420, 424 (Bankr. N.D. Tex. 2002) the court rejected the presumption in favor of the debtor, ruling that “[a]bsent a specific fee-shifting statutory or contractual authorization, federal courts apply the so-called ‘American Rule,’ which requires that each side in a lawsuit bear liability for its attorney’s fees.” The court held that the American Rule should be relaxed in favor of the debtor, “if circumstances warrant,” but otherwise each side should bear their own costs. Id. In Allied Riser the court refused to award the debtor’s fees because it found that the petitioning creditors’ motivations were reasonable and they did not file in bad faith. Id. Specifically, the petitioning creditors had filed believing that $117 million in notes had become due and payable as a result of a change of control of the alleged debtor due to a merger. The petitioning creditors claimed that they were concerned, and there was evidence to this effect, that all of the alleged debtor’s cash reserves would be spent following the merger. The court held that the record contained no evidence that the petitioners sought to harm the alleged debtor. Instead, the record showed that the petitioners legitimately believed the notes were due, they were trying to preserve the alleged debtor’s cash reserves and as well as avoidance causes of action. The court held that the “reasonableness of the actions taken by the petitioning creditors and their motivations and objectives do not weigh in favor of awarding [the alleged debtor’s] attorney’s fees.” 283 B.R. at 424.

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EXHIBIT 18 Capturing Failure by William McGrane

Footnote XVIII

What follows are selected cases intended to illustrate the spectrum of what the federal courts consider “bad faith” filings under §303. There are literally hundreds of such cases and it is beyond the scope of this article to attempt to pigeonhole either all or even a substantial percentage of them.  The Good [with apologies to Clint Eastwood. See http://en.wikipedia.org/wiki/The_good_the_bad_and_the_ugly!"  In re Allied Riser Communications Corp., 283 B.R. 420 (Bankr. N.D. Tex. 2002). In this case, involving a facilities-based broadband provider, petitioners held a claim based on $117 million in notes, which they claimed became due and payable following the change of control of the debtor following a merger. On the debtor’s motion to dismiss the involuntary petition the bankruptcy court held that the issue of whether the notes were due and payable was the subject of a bona fide dispute and hence, it dismissed the petition. The alleged debtor then requested its costs and attorneys fees under § 303(i). The court held that the petitioning creditors did not file the involuntary petition in bad faith. There was no evidence that the creditors sought to harm the alleged debtor. To the contrary, the petitioners believed they had valid claims and they were legitimately seeking to preserve the alleged debtor’s cash and preserve avoidance actions. Id. at 424. As such, the court refused to award attorneys’ fees. With particular reference to the subject matter of this article—the propriety of a creditor’s using the Bankruptcy Code to forum shop—the alleged debtor had argued that the petitioners were acting in bad faith by forum shopping following an unsuccessful state court action to enjoin the merger. The court was unpersuaded, noting that it is not uncommon to use the bankruptcy process following adverse litigation consequences and that it may very well have been the debtor that forum shopped had it lost in state court. Id. at 424- 25.

In re Bayshore Wire Products Corp., 209 F.3d 100 (2nd Cir. 2000). Here, the Second Circuit upheld an award of attorneys’ fees and costs but overturned the bankruptcy court’s finding of bad faith and an award of punitive damages. The bankruptcy court, on a motion to dismiss, had initially upheld the filing of an involuntary petition, even after a motion for reconsideration, because it found that there were three creditors whose claims were not subject to a bona fide dispute. Id. at 102. After trial on the viability of the involuntary petition, however, the bankruptcy court found that one of the remaining three petitioning creditor’s claims was actually owed by the principal of the alleged debtor, not the debtor. That left only two petitioning creditors whose claims were not contingent or subject to a bona fide dispute. Id. The court further found that the petitioners had failed to establish that the debtor was generally not paying its debts as they became due. Id. at 102-03. The court ruled that the alleged debtor was entitled to $23,087 in attorney’s fees and $26,735 in costs and damages against all the petitioners and held that two of the petitioners had filed the petition in bad faith and hence, were liable for punitive damages of $10,000. Id. at 103. The Second Circuit upheld the award of costs and attorneys’ fees but overturned the finding of bad faith and the award of punitive damages. Id. at 105. While refusing to adopt any particular test for assessing whether a petition was filed in bad faith, the court found that the petitioners had a reasonable basis for believing that the claim submitted by the third petitioner was against the alleged debtor, and not its principal, especially given the bankruptcy court’s initial finding that the claim was valid. Id. at 106. Further, the Court found that there was at least some evidence that the debtor was not paying its debts as they became due. Thus, while it was appropriate to award fees and costs, the Second Circuit held the bankruptcy court “clearly erred” in finding that the petitioners had filed the involuntary petition in bad faith. Thus, it reversed the award of punitive damages. Id. at 107.

The Bad

In re St. Marie Development Corp. of Montana, Inc., 334 B.R. 663 (Bankr. D. Mont. 2005). In this case the court found that an involuntary bankruptcy petition had been filed in bad faith by former insiders of the debtor who had themselves held a sizeable portion of the alleged debtor’s debt, most of which was subject to a bona fide dispute. If they were excluded it left only two qualified petitioning creditors. There was evidence that the primary purpose behind the filing was to gut the debtor’s counterclaims in a state court lawsuit. Id. at 671. Petitioners further failed to provide any credible evidence that the alleged debtor was not generally paying its debts as they became due and in fact, under new management, no recent debts were created or went unpaid. Id. at 672. The court was further persuaded that the petitioners had acted in bad faith by what it found to be grievous conduct in the state court proceedings, including filing several lis pendens with respect to unsecured debt. The court indicated it would award reasonable attorneys fees and costs but did not address whether it would award punitive damages. Id. at 674.

In re Cannon Express Corp., 280 B.R. 450 (Bankr. W.D. Ark. 2002). Here, three individuals filed in involuntary bankruptcy petition against a trucking company. Following a motion to dismiss by the alleged debtor, the petitioners filed a motion for a voluntary dismissal, which was granted over the objection of the alleged debtor. The alleged debtor later sought costs, fees and damages under § 303. The court reviewed the petitioner’s due diligence before filing the involuntary petition and concluded that two of them did nothing to investigate whether the alleged debtor was paying its bills. The third looked over a few10-Q’s and decided it showed a trend that the debtor was in trouble. Id. at 454. The court noted that it should be a threshold inquiry for all petitioning creditors to determine if an alleged debtor is paying its bills as they become due. Id. at 454-55. The alleged debtor introduced evidence that it was paying in excess of 85% of its invoices within 30 days. Id. at 455. Further, the court found that all three petitioning creditors’ claims were subject to a dispute and that the dispute properly belonged in state court. Id. The court further found that the petitioners had inaccurately believed their claims would receive priority vis a vis other creditors if they filed the petition, which the court found to be an improper purpose. Id. Applying the objective test, the court found that a reasonable person would not have filed an involuntary bankruptcy petition under the circumstances. Id. at 456. Based on the foregoing the court found that the petition had been filed in bad faith. Id. at 456-57. The court awarded some limited costs but the alleged debtor was unable to establish damages. Id. at 457, 461-62. The court also awarded punitive damages of $15,000 each against two petitioners and $5,000 against the third. Id. at 462.

In re Law Center, 261 B.R. 607 (Bankr. M.D. Pa. 2001). In that case, involving a husband-wife law partnership, the wife filed an involuntary petition against the partnership during the pendency of state court litigation in which virtually all of the assets of the partnership had been distributed. The husband moved to dismiss the involuntary petition and sought attorneys fees and costs and punitive damages. The bankruptcy court noted that the wife had participated in a voluntary dissolution agreement that had been enforced by the state court and had exercised her right to appeal there. At a minimum, the court held that her claim was the subject of a bona fide dispute and held it was noteworthy that she refused to check the box on the bankruptcy petition indicating that her claim was not subject to a bona fide dispute. Id. at 612. The court concluded that the wife filed the involuntary petition “solely to circumvent the state court determinations that [she] had no further claims against [her former husband or the partnership].” Id. at 613. The court awarded costs, attorneys’ fees and $1,000 in punitive damages for the “frivolous filing.” Id.

In re Manhattan Industries, Inc., 224 B.R. 195 (Bankr. M.D. Fla. 1997). In this case, a single petitioner, a franchisor named the Manhattan Bagel Company, filed an involuntary petition against one of its franchisees, Manhattan Industries, Inc. At the time of the filing there were two separate lawsuits pending between the parties in different states. In one lawsuit the alleged debtor was seeking over $660,000 based on claims of fraudulent misrepresentation and the return of franchise deposits for two franchises that were never awarded. Id. at 198. In the second lawsuit the petitioning creditor filed an eviction action, which was unopposed by the alleged debtor, and obtained a default judgment in the amount of approximately $23,000. The court held that while generally a counterclaim, even if of substance, does not render a valid claim subject to a bona fide dispute, counterclaims may be used to reduce the dollar amount of claims or the number of creditors required to for the statutory minimum for involuntary relief. Id. at 200. The court found that the petitioning creditor acknowledged that it owed the alleged debtor more than the amount of its judgment based just on the unreturned franchise deposits. Id. The court then held that based on the amount of the setoff, there was a bona fide dispute. Turning to the issue of bad faith, the court held that the petitioning creditor’s true purpose in filing the involuntary petition was an attempt to defeat the alleged debtor’s state court action. Id. at 201. That, the court held, was an attempt to use the bankruptcy process as a sword rather than a shield, which was improper. “Unscrupulous creditors should not be allowed to change the outcome of an existing lawsuit by filing for refuge in the bankruptcy courts … There is no legitimate purpose for this involuntary petition.” Id. at 201. Based upon the fact that the petitioning creditor’s claim was subject to a bona fide dispute and the lack of good faith the bankruptcy court dismissed the involuntary petition, although there was no discussion of fees or costs.

And the Ugly

In re Richards Homes Building Co., 291 B.R. 727 (Bankr. E.D. Mich. 2003). This case involved a single petitioner who filed an involuntary petition three weeks after filing a state court action regarding a dispute concerning a real estate transaction. The bankruptcy court dismissed the involuntary petition finding that the petitioner “knew or surely must have known that his claim was the subject of a bona fide dispute, and therefore that he was not qualified to be a petitioning creditor.” 291 B.R. at 731. After examining the totality of circumstances the court held that the petitioner had filed the petition in bad faith. Among other findings the court found: petitioner knew or should have known that his claims were the subject of a bona fide dispute; petitioner knew that alleged debtor would suffer serious harm as a result of the involuntary filing, as evidence by a threat he made to the debtor’s principal; petitioner hired a public relations firm at great expense to publicize the bankruptcy filing and spread false rumors about the debtor’s dealings with its other customers; petitioner’s attorney threatened the alleged debtor’s principal with criminal prosecution unless he agreed to cancel debt owed by petitioner and pay him off; the involuntary bankruptcy petition contained $800,000 claim for fraud but petitioner was unable to articulate basis for damages; petitioner used improper threats and flaunted his wealth in an attempt to get other creditors to join petition, and said only petitioners who joined would get paid; petitioner threatened debtor’s principal and made it clear he was mad and would use his wealth to get his way; petitioner falsely testified at trial. (see 291 B.R. at 731-35.) It is noteworthy that the court refused to accept petitioner’s argument that he had relied on the advice of counsel because the court found that the petitioner willfully failed to disclose all of the pertinent facts in the case. Id. at 734-35. The petitioner paid a heavy price for its bad faith as the court awarded $4.1 million in actual damages, $2.0 million in punitive damages and $313,000 in fees and costs. Id. at 736, 739-40.

In re Ballato, 252 B.R. 553 (Bankr. M.D. Fla. 2000). In another egregious case, a single petitioning creditor, an attorney seeking to collect unpaid attorneys’ fees, filed an involuntary Chapter 7 bankruptcy petition against an individual. In his petition the petitioner alleged two debts in an attempt to show the debtor was generally not paying his debts. However, neither one of these turned out to be debts owed by the debtor. Id. at 252 B.R. at 555-56. The petitioner then conducted an extensive search for additional creditors and obtained several affidavits showing additional debts, including unpaid hospital and doctor’s bills, the petitioner’s claim for unpaid attorneys’ fees and telephone charges in the amount of $413 incurred in connection with the corporate use of the debtor’s cell phone. Id. at 556. However, as it turned out the unpaid doctor and hospital bills were submitted to the debtor’s insurer and the claim was never denied and the debtor was never again billed for the services. Other creditor claims were years old and not supported by admissible evidence. With respect to the petitioner attorney’s claim for pre-petition attorney’s fees, in the amount of $80,000, there was no fee agreement and there was evidence of an understanding that the attorney would collect the fees from the plaintiff in certain underlying litigation the attorney had been defending. Id. There also was evidence that showed that when the petitioner became aware that the debtor might receive money from a sale of property it abandoned its effort to collect his fee from the underlying plaintiff and instead went after the alleged debtor. The petitioner also offered to dismiss the involuntary case in exchange for $100,000 (more than the petitioner’s claim). Id. The court held that the petitioning creditor’s claim was “clearly in bona fide dispute,” and thus the petitioner was ineligible to be a petitioning creditor. Id. at 556-57. Further, the court held that the debtor had a reasonable basis for not paying the various claimed debts alleged by the petitioner and that the debts that were the subject of a bona fide dispute should not be considered when determining whether a debtor is generally not paying his debts. Id. at 557. The court excoriated the petitioning creditor, noting that “petitioning creditors should carefully examine the risks undertaken when considering filing an involuntary petition … This is especially true when the involuntary case is filed by a single petitioning creditor.” Id. Ultimately, the court held that the petitioning creditor filed the case in bad faith, finding that the underlying matter was a two- party dispute, the petitioner failed to present any evidence that the debtor was not paying its debts, the petitioner, an attorney misrepresented to the court that he was a judgment creditor when he was not, and he misrepresented the status of another creditor when filing the petition. Id. at 558-59. The court dismissed the petition and retained jurisdiction to award fees, damages and costs under § 303(i)(1) and (2).

In re Oakley Custom Homes, Inc., 168 B.R. 232 (Bankr. D. Col. 1994), the bankruptcy court awarded attorneys’ fees and costs, damages and punitive damages against the petitioning creditors. In that case there were two petitioning creditors, which was sufficient because the court found the debtor had fewer than twelve creditors. The court found that one of the petitioners, Ms. Chandler, was represented by an agent, Mr. Harpin, who had acted in coercion with the other petitioner, Mr. Kelley, throughout the history of the party’s relationship and against the principal of the alleged debtor, Mr. Perkins. After Mr. Kelley withdrew as a petitioner (his claim was clearly contingent and subject to a bona fide dispute), the court held a trial on whether Ms. Chandler’s claim was the subject of a bona fide dispute. In a directed verdict the court dismissed the involuntary case, holding that the claim was certainly subject to a bona fide dispute and further that the petitioners had failed to provide anywhere close to sufficient evidence that the alleged debtor was not paying its debts as they became due. The court also held that the “involuntary bankruptcy petition was merely a continuation, and an exacerbation, of the parties’ other business disputes and pending state court litigation.” 168 B.R. 238. In addressing the issue of bad faith the court held that the conclusion of bad faith was “almost inescapable.” Id. at 239. The court found the following evidence weighty in drawing its conclusion of bad faith: Petitioners (including Mr. Harpin, as agent for Ms. Chandler) said they would financially ruin the Debtor and its principal, Mr. Perkins, with or without legal basis … [and that] they would prevail in their litigation by sheer force of financial resources; Petitioners threatened to kill a witness, an attorney in a related case who was privy to the petitioners’ threats; Petitioners had demonstrated a pattern of harassment, overreaching, uncompromising combativeness, intimidation, even deceit and threats; Petitioners willfully pursued involuntary bankruptcy to settle financial disputes with and to financially punish and injure the alleged debtor and its principal; The testimony of Petitioners was not credible; Petitioners threatened other witnesses; Petitioners made anonymous mailings to alleged debtor’s other creditors in an attempt to harm business relations; Petitioner submitted a personal narrative to court attacking integrity and professionalism of a witness; Mr. Kelley and his attorney exhibited “unusual and questionable tactics.”; Petitioners’ attorney threatened alleged debtor with involuntary filing and then filed petition knowing both petitioner’s claims were contingent and the subject of a bona fide dispute; Petitioner’s attorney made no independent investigation into the propriety and validity of filing an involuntary petition but rather recklessly ignored evidence to the contrary; Petitioner’s attorney continued pursuing involuntary petition for five months in face of available evidence that the petition was being urged in bad faith; The fact that the involuntary petition was dismissed following a directed verdict before alleged debtors put on their case reflected a more reckless and unwarranted filing of the petition in the first place. (See 168 B.R. at 237-41.) The court ended up awarding fees of just under $15,000, actual damages of $206,000, which were divided among the petitioning creditors and Mr. Harpin. The court also awarded punitive damages of $75,000 each against Mr. Kelley and Mr. Harpin. Id. at 244.

EXHIBIT 19 The Way We Live Now - Wikipedia, the free encyclopedia http://en.wikipedia.org/wiki/The_Way_We_Live_Now

From Wikipedia, the free encyclopedia

The Way We Live Now is a scathing satirical novel published in London in 1875 by Anthony Trollope, after a popular serialisation. In 1872 novelist Anthony Trollope returned to England from abroad and was appalled by the greed loose in the land. His scolding rebuke was his longest and arguably best novel, regarded by many of Trollope's contemporaries as his finest work.

Containing over a hundred chapters The Way We Live Now is particularly rich in sub-plot. It was inspired by the financial scandals of the early 1870s, and lashes at the pervading dishonesty of the age, commercial, political, moral, and intellectual. It is one of the last significant Victorian novels to have been published in monthly parts.

First edition title page. 1 Plot summary 2 Adaptations 3 Trollope's own views of his novel 4 References 5 External links

Augustus Melmotte is a foreign-born financier with a mysterious past (he is rumored to have Jewish origins, and it is later revealed that he owned a bankrupted bank in Munich). When he moves his business and his family to London, the city's upper crust begins buzzing with rumours about him - and a host of characters ultimately find their lives changed because of him.

Melmotte sets up his office in the City of London and he purchases a fine house in Grosvenor Square. He sets out to woo rich and powerful investors by hosting a lavish party, and finds an appropriate investment vehicle when he is approached by a young engineer, Paul Montague, and his American partner, Hamilton K. Fisker, to invest in the construction of a new railway line running from Salt Lake City to Veracruz, Mexico. Melmotte's goal is to ramp up the share price without paying out any actual money into the scheme itself, thereby increasing his own not-inconsiderable wealth.

Amongst the wealthy aristocratic investors on the railway scheme's board is Sir Felix Carbury, a young and dissolute baronet who is quickly running through his widowed mother's savings. In an attempt to restore their fortunes, as they are being beset by their creditors, his mother, Lady Matilda Carbury - who makes ends meet by writing historical potboilers with titles like Criminal Queens: Powerful Women as the Playthings of Love - endeavours to have him become engaged to Marie Melmotte, the Melmottes' only child and a considerable heiress in her own right. Sir Felix manages to win Marie's heart, but his schemes are blocked by Melmotte, who has no intention of allowing his daughter to marry a penniless aristocrat. Felix's situation is also complicated by his relationship with Ruby Ruggles, a buxom young farm girl living with her grandfather on the estate of Roger Carbury, a well-off land-owning cousin of the Carburys.

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Whilst Melmotte is carrying out his financial shenanigans, Paul Montague is the one person who is a thorn in his side. In the South Central Pacific and Mexican Railway Board meetings, chaired and controlled by Melmotte, it is Paul who raises the difficult questions of when the money will actually be allocated to the railway line. Paul has already had experience of building a railway line in North America and is too experienced to be brushed aside easily. Paul's personal life is also made complicated by his amorous affairs. He falls in love with Lady Carbury's young and beautiful daughter Hetta - much to her mother's fury - but has been followed to England by a former American fiancée, the dashing Mrs Winifred Hurtle. Mrs Hurtle is determined to make Paul marry her based on the fact that they had lived together in America, and that she offered him "all that a woman can give." It is Lady Carbury's plan, advised by her literary friend Mr Broune, a distinguished London publisher, for Hetta to marry her cousin Roger. Roger has been Paul's mentor and the two start to come into conflict over their attentions towards Hetta, who steadfastly refuses to marry her cousin, against her mother's wishes.

Events start to come to a head when Paul finally gets Mrs Hurtle's consent to free him of his obligations towards her, in exchange for agreeing to spend one final weekend with her on the coast. Whilst walking along the sands, they meet Roger Carbury, who, on seeing Paul with another woman, decides to break off all acquaintance with him, believing that Paul is simply playing with Hetta's affections. In the meantime, Felix Carbury is torn between his affection for Ruby and his financial need to pursue Marie Melmotte. Ruby, after being beaten by her grandfather for not marrying a respectable local miller, John Crumb, runs away to London and finds refuge in the boarding house owned by her aunt, Mrs Pipkin - where, as it happens, Mrs Hurtle is lodging. Felix learns from Ruby about Mrs Hurtle's relationship with Paul and, coming into conflict with Mrs Hurtle over his attentions to Ruby, reveals all his new-found knowledge to his mother and sister. Hetta is devastated and breaks off her engagement to Paul. Meanwhile, in order to get Paul out of London and away from the Board meetings, Melmotte attempts to send Paul off to Mexico on a nominal inspection trip of the railway line; but Paul declines to go.

Finding that they cannot get around Melmotte, Felix and Marie decide to elope together to America. Marie and her maid steal a blank cheque from her father's desk and cash it at his bank, arranging to meet Felix on the ship at Liverpool. Felix, who has been given money by Marie for his expenses, goes to his club and gambles it all away in a revenge card game, instigated by his friend Lord Nidderdale, against Miles Grendall, who had cheated Felix in a previous game. Drunk and penniless, Felix returns to his mother's house, knowing the game is up. Meanwhile, after Melmotte has been alerted by his bank, Marie and her maid, who believe that Felix is already on the ship at Liverpool, are intercepted by the police before they can board the ship, and Marie is brought back to London.

Melmotte, who by this time has also become an MP and the purchaser of a grand country estate belonging to Mr Longestaffe (whose daughter Georgiana is the heroine of a lengthy satirical subplot), also knows that his own game is nearly up, particularly after his shenanigans are exposed by Paul to Mr Alf, a journal editor and political rival. When Longestaffe and his son demand the purchase money for the estate Melmotte had bought from them, Melmotte forges his daughter's name to a document that will allow him to get at her money (money that Melmotte had put in her name precisely to protect it from creditors, and which Marie refused to give back to him). He tries to get his clerk, Croll, to witness the forged signature. Croll refuses. Melmotte then also forges Croll's signature, but makes the mistake of leaving the documents with Mr Brehgert, a banker. When Brehgert returns the documents to Croll, rather than to Melmotte, Croll discovers the forgery and leaves Melmotte's service. With his creditors now knocking at his door, the railway shares nearly worthless, charges of forgery looming in his future, and his political reputation in tatters after a drunken appearance in the House of Commons, Melmotte poisons himself.

The remainder of the novel ties up the loose ends. While Felix is out with Ruby one evening, John Crumb comes upon them and, believing that Felix is forcing his attentions on her, beats Felix to a pulp. Ruby finally realizes that Felix will never marry her, and returns home to marry John. Felix is forced to live by his wits on the

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Continent. Lady Carbury marries Mr Broune, who has been a true friend to her throughout her troubles. Hetta and Paul are finally reconciled after he tells her the truth about Mrs Hurtle; Roger forgives Paul and allows the couple to live at Carbury Manor, which he vows to leave to their child. Marie, now financially independent, becomes acquainted with Hamilton K. Fisker, and agrees to go with him to San Francisco, where she eventually marries him. She is accompanied by her stepmother, Madame Melmotte; Croll, who marries Madame Melmotte; and Mrs Hurtle. They never return to England.

The novel has been adapted for television in 1969 and 2001 by the BBC. The 2001 adaptation has aired on American PBS as well. It was also adapted for radio (and re-set in the present day) under the title The Way We Live Right Now in 2008 as a Woman's Hour drama serial.

For a satirical book, he said, The Way We Live Now was "powerful and good". "The character of Melmotte is well maintained," he wrote. "The Beargarden is amusing, and not untrue...." "The young lady with her two lovers (referring to Hetta) is weak and vapid...." Hetta, Roger, and Paul were all "uninteresting," in his view. "The interest of the story," he wrote, "lies among the wicked and foolish people -- with Melmotte and his daughter, with the American woman Mrs. Hurtle, and with John Crumb and the girl of his heart.... Upon the whole," Trollope wrote, "I by no means look upon the book as one of my failures."

The Way We Live Now, Anthony Trollope, The World's Classics, Oxford University Press.

The Way We Live Now (http://www.gutenberg.org/etext/5231) at Project Gutenberg The Way We Live Now (http://www.19thnovels.com/thewaywelivenow.php) – complete book in HTML one page for each chapter. The Way We Live Now (http://librivox.org/the-way-we-live-now-by-anthony-trollope/) – unabridged public domain audiobook on Librivox.org. The Way We Live Now Map (http://www.communitywalk.com/the_way_we_live_now_map /map/175123) Retrieved from "http://en.wikipedia.org/wiki/The_Way_We_Live_Now" Categories: 1875 novels | Novels by Anthony Trollope | Masterpiece Theatre

This page was last modified on 27 March 2011 at 15:28. Text is available under the Creative Commons Attribution-ShareAlike License; additional terms may apply. See Terms of Use for details. Wikipedia® is a registered trademark of the Wikimedia Foundation, Inc., a non-profit organization.

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EXHIBIT 22 Capturing Failure - Footnote XXII http://www.tmcglaw.com/capturingfailure/xxii.html

by William McGrane Footnote XXII See General Motors Corporation, SEC Form 10-Q (for the quarterly period ending March 31, 2009), available at http://www.sec.gov/Archives/edgar/data/40730/000119312509105365/d10q.htm, 5 (“As a result of these economic conditions and the rapid decline in our sales . . . we determined that, despite the far reaching actions we had then taken to restructure our U.S. business, we would be unable to pay our obligations in the normal course of business in 2009 or service our debt in a timely fashion . . . .”); 10 (“Our ability to continue as a going concern is dependent on many events outside of our control . . . . Our significant recent operating losses and negative cash flows, negative working capital . . . among other factors, raise substantial doubt as to our ability to continue as a going concern . . . .”).

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EXHIBIT 23 Capturing Failure - Footnote XXIII http://www.tmcglaw.com/capturingfailure/xxiii.html

by William McGrane Footnote XXIII See, e.g., Robert Nardelli, Chrysler’s Plan for Short-Term and Long-Term Viability, Submitted to United States House Committee on Financial Services, December 2, 2008, available at http://online.wsj.com/public/resources/documents /chrysler_restructuring120208.pdf, 5 (Chrysler’s self-admission that “without an immediate working capital bridge, Chrysler’s liquidity could fall below the level necessary to sustain the company through the first quarter of 2009”); 14 (“Without immediate bridge financing support, Chrysler’s liquidity could fall below the level appropriate to ensure operations in the ordinary course”); http://www.thetruthaboutcars.com/2008/06/chrysler-cashflow-crisis-confirmed/ (noting that Chrysler was changing payment terms on all purchase orders to move payment back from 45 days to 60 days and by deducting 5% off the top of all payments).

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