The University of Texas School of Law Presented: 2012 Jay L. Westbrook Bankruptcy Conference November 8 -9, 2012 Austin, Texas Involuntary Petitions: a Weapon in the Right or Wrong Hands Michael P. Cooley AKIN GUMP STRAUSS HAUER & FELD LLP 1700 Pacific Avenue, Suite 4100 Dallas, Texas 75201-4624
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[email protected] Continuing Legal Education • 512-475-6700 • www.utcle.org Error! Unknown document property name. I. INTRODUCTION1 The concept of initiating a bankruptcy case against an entity, through the filing of an “involuntary” petition against the putative debtor, is nothing new. In fact, involuntary bankruptcy cases predate voluntary bankruptcy cases entirely – by nearly three centuries – having first arisen under “An act against such persons as do make bankrupts,” enacted in England in 1542, and under which a bankruptcy case could only be initiated by creditors against subject debtors.2 Today, Section 303 of the Bankruptcy Code, and its provisions governing the processes for filing, litigating and administering involuntary petitions, are well known – at least generally – to the average bankruptcy practitioner, having undergone only minor changes since its enactment in 1978.3 That this familiarity is the product of the enduring structure of the statute, more so than any particular historical significance or experience with involuntary cases, is supported by the small fraction that such cases historically