by Structured Settlement Watchdog®
A "Structured Dismissal" in a bankruptcy is not a structured settlement, "so-called" or otherwise. Fortunately former Supreme Court Justice Stephen Breyer was up to the task when a Washington DC lawyer attempted to frame the mischaracterization in a recent hearing. Unfortunately Breyer's subtle efforts could not prevent another Washington DC law firm from amplifying the mischaracterization in its commentary in JD Supra Business. featuring "key takeaways" from oral arguments on December 7, 2016 in the bankruptcy case Czyzewski v. Jevic Holding Corp.
Definition of Structured Settlement in Internal Revenue Code at IRC 5891(c)(1)
The term “structured settlement” means an arrangement
(A) which is established by—(i)suit or agreement for the periodic payment of damages excludable from the gross income of the recipient under section 104(a)(2), or(ii)agreement for the periodic payment of compensation under any workers’ compensation law excludable from the gross income of the recipient under section 104(a)(1), and(B) under which the periodic payments are—
(i)of the character described in subparagraphs (A) and (B) of section 130(c)(2), and (ii) payable by a person who is a party to the suit or agreement or to the workers’ compensation claim or by a person who has assumed the liability for such periodic payments under a qualified assignment in accordance with section 130.
Part of my mission as the Structured Settlement Watchdog®, is to clear the path for legitimate structured settlement information via critical commentary/education. In this case, four Washington DC attorneys at Orrick Herrington & Sutcliffe LLP have co-authored a review of oral arguments in a Supreme Court case and have muddled up the term "structured settlement".
Here is their review as published online at JD Supra Business on December 12, 2016:
"The United States Supreme Court heard oral arguments on December 7, 2016 in Czyzewski v. Jevic Holding Corp. The case poses a question that has divided the Second, Third, and Fifth Circuits: Whether a bankruptcy court may authorize the distribution of settlement proceeds in a way that departs from the statutory priority scheme in the Bankruptcy Code, including through a so-called “structured settlement.”
- The Supreme Court heard arguments in Jevic to consider whether structured settlements can depart from the absolute priority rule.
- Several Justices suggested that, even if pre-plan settlements can depart from the priority hierarchy in exceptional cases, this may not be such a case.
- We expect the Court to rule on this matter in early 2017"
Justice Breyer Kills The Confusion by Asking " What's a Structured Settlement?"
According to the transcript of the hearing which the lawyers at Orrick graciously linked to their article, after the term "structured settlement" was interposed for structured dismissal and batted around like a beach ball between the lawyers and Justices Kennedy and Sotomayor, Justice Stephen Breyer, stepped in and astutely asked the following:
Justice Breyer "But that's --I see that point, which you've made several times, is a very good point. I --clarify a basic misunderstanding on my part. What's a structured settlement?"
Bob Landau, another Washington DC attorney responds "Well, I think a structured settlement is --it's not a legal term. It's something they've come up with in this case". (emphasis added)
Justice Breyer: Why not just call it a settlement?
Bob Landau: I think you could. And I think in that -
Justice Breyer: Let's call it a settlement.
Bob Landau: Perfect.
Download 15-649 Jevic Holding SCOTUS hearing transcript structured dismissal v structured settlement Breyer snub [excerpt appears on page 41 lines 3-18]
Mr. Landau's highlighted comments speak for themselves.
Supreme Court Justice Stephen Breyer Was Not Fooled By Misuse of the Term "Structured Settlement" in December 7, 2016 Oral Arguments
Who is Justice Stephen Breyer?
Justice Breyer was born in San Francisco, California, August 15, 1938. He married Joanna Hare in 1967, and has three children - Chloe, Nell, and Michael. He received an A.B. from Stanford University, a B.A. from Magdalen College, Oxford, and an LL.B. from Harvard Law School. He served as a law clerk to Justice Arthur Goldberg of the Supreme Court of the United States during the 1964 Term, as a Special Assistant to the Assistant U.S. Attorney General for Antitrust, 1965–1967, as an Assistant Special Prosecutor of the Watergate Special Prosecution Force, 1973, as Special Counsel of the U.S. Senate Judiciary Committee, 1974–1975, and as Chief Counsel of the committee, 1979–1980. He was an Assistant Professor, Professor of Law, and Lecturer at Harvard Law School, 1967–1994, a Professor at the Harvard University Kennedy School of Government, 1977–1980, and a Visiting Professor at the College of Law, Sydney, Australia and at the University of Rome. From 1980–1990, he served as a Judge of the United States Court of Appeals for the First Circuit, and as its Chief Judge, 1990–1994. He also served as a member of the Judicial Conference of the United States, 1990–1994, and of the United States Sentencing Commission, 1985–1989. President Clinton nominated him as an Associate Justice of the Supreme Court, and he took his seat August 3, 1994.
Justice Breyer retired from the Surpreme Court in 2022 and was replaced by Justice Ketanji Brown Jackson, the first African American woman to be elevated to Supreme Court Justice.
Last updated Novemebr 14, 2022
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