Bankruptcy

Anna Nicole Smith --The Bankruptcy That Keeps on Giving

By Bob Lawless

It can really bug me when blogs have posts that are just a naked attempt to draw traffic to their site. These posts always are sure to contain a few words that will attract the attention of search engine users seeking porn or the usual titillating web sites. Seemingly random references to celebrities such as Brittany Spears, Rihanna, or Paris Hilton will be put into the blog. And, worse of all, these naked attempts at self-promotion will use word repetition and appear near the beginning of the web page to optimize their search engine placement. Therefore, I was not surprised to find references to the 15-year old bankruptcy case of the late Anna Nicole Smith, who was often described as sexy and buxom.

On a more serious note, it was somewhat puzzling to see references to this old bankruptcy case. It was dredged up for an AP story that was sourced to "newly released government files" obtained by a Freedom of Information Act (FOIA) request directed to the Department of Justice. The article cites to "the bankruptcy examiner's report." I don't give a rat's pa-too-tee about the contents of the report, but I wondered about the whole FOIA thing. If this was a bankruptcy examiner's report, wouldn't it be part of the public court record? Why did they need to use FOIA? If the court ordered the report filed under seal or otherwise made the report unavailable, then why can a FOIA request effectively circumvent the court order? Or, was this not a bankruptcy examiner's report in the technical sense of the term and, if so, what was it?

There is actually a serious policy point here. Bankruptcy courts need to be available for public scrutiny for all the same reasons all of our courts should be available for public scrutiny. When judges take measures to keep certain documents or proceedings private, it should done sparingly and only for compelling reasons. Actually, given the content of the report, it does sound like there would have been compelling reasons to seal this report out of privacy concerns, but I don't know if that is what happened. If anyone has more specifics, please report in the comments.

There once was a case from Nebraska (I think -- being admittedly too lazy to go look up the citation) where someone tried to file an entire bankruptcy under seal, reasoning it would be an embarrassment for the local community to know he filed bankruptcy. The court, correctly in my view, rejected the request, reasoning that bankruptcy is a public act. I've used this case in my courses as a departure for a discussion about what sort of information we should expect bankruptcy filers to reveal.

Changing the subject, I do wonder whether my tongue-in-cheek introductory paragraph will result in any noticeable increase in blog traffic. I'll report back if it does. My sense is that search engines have gotten too sophisticated for that sort of cheap trick to work. When Anna Nicole Smith's bankruptcy made it up to the Supreme Court, I signed an amicus brief supporting her side of the case. When I went into law teaching, supporting Anna Nicole Smith in an amicus brief was among the least likely things I expected to do. And, for those who don't remember, she won her case in the Supreme Court.

Postscript--I did not check to make sure that "pa-too-tee" was spelled correctly, although I believed I used the Latin variation. I did, however, check "buxom." (Yes, I can actually be that dumb.) And, I kid you not, when you put the word "buxom" into Google, you get a picture of Anna Nicole Smith .

Full post as published by Credit Slips on January 28, 2010 (boomark / email).