Latest Case This Week: In re: Orlandi (6th Cir.)

Which Laws Apply to Broker-Dealers? Federal Laws? State Laws? Both? General Principles Leading to an Answer

TAMAR FRANKEL

BU Law emerita professor Tamar Frankel explains the law of preemption as it pertains to broker-dealers and their investor clients. She predicts, among other things, that either the clients will demand that broker-dealers adhere to a fiduciary duty, or else that states will impose that duty on them.

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In re: Orlandi

Court: US Court of Appeals for the Sixth Circuit

Docket: 19-8001

Opinion Date: February 28, 2020

Judge: Harrison

Areas of Law: Bankruptcy

In 2005, Studio entered into a commercial lease with LFLP. The debtor signed the lease as Studio's president and signed a separate personal guaranty. In 2008, the debtor filed a Chapter 7 petition, listing LFLP as a creditor; LFLP received notice of the filing and of the discharge. In 2011, the debtor, on behalf of Studio, exercised a five-year lease extension option. Studio vacated the premises before the end of the extended term. LFLP sued in Ohio state court, based on the personal guaranty. The debtor included “Discharge in Bankruptcy” as an affirmative defense. The bankruptcy court reopened the bankruptcy; the debtor filed this adversary proceeding, asserting that the personal guaranty was discharged and that LFLP willfully violated the discharge injunction by filing the state court action. The defendants argued that the lease extension resurrected the personal guaranty and that the original lease and the extension contained a survivability clause that superseded the bankruptcy. The bankruptcy court concluded that the 2008 discharge meant that the debtor was no longer liable under the Guaranty and that filing and continuing the state court action were willful violations of the discharge injunction. The Sixth Circuit Bankruptcy Appellate Panel affirmed in part. A pre-petition personal guaranty is a contingent debt that is discharged in bankruptcy. The court reversed the holding that the defendants willfully violated the discharge injunction and an award of damages in light of the Supreme Court’s 2019 Taggert decision.