Creditor's Rights Vindicated: Bad Faith Chapter 11 Dismissed By Appellate Court

Factual Background

The case is Maryland Port Administration v. Premier Automotive Services, Inc. (In re Premier Automotive Services, Inc.), ___ F.3d ___ (No. 06-2207) (4th Cir. June 15, 2007). Premier was an import-export concern that regularly processed thousands of trucks and pieces of heavy equipment at the port of Baltimore, on land leased from the Maryland Port Administration (the 'MPA'). That parcel was known as 'Lot 90,' approximately six and one-half acres located at Baltimore's Dundalk Marine Terminal. Premier had been a tenant for more than 40 years under a succession of agreements, the most recent having expired on June 30, 2002.

Prior to that date, the MPA and Premier engaged in negotiations to renew the lease for an additional five years. The agency insisted that the renewal contain a 'throughput' requirement, in other words a guarantee that the tenant would move at least 1700 vehicles annually per acre through Lot 90. The agency also wanted the freedom to relocate Premier elsewhere within the terminal grounds, if it deemed necessary. Premier would not agree, so a new lease was never executed. Notwithstanding the lack of a lease, Premier refused to leave and assumed status as a month-to-month 'holdover' tenant.

Negotiations over the next three years went nowhere. Yet, Premier remained on site well into 2005, still without a lease. In January 2005, the MPA entered into a new lease for Lot 90 with another automotive importer/exporter, which apparently agreed to all the agency's terms (particularly the 1700 vehicle throughput requirement and the relocation clause). In March 2005, the agency demanded Premier vacate, making it known that it had a new tenant for the parcel, and it was time for Premier to get out. To be sure, the MPA unequivocally notified Premier that the existing month-to-month tenancy would terminate on May 1.^.

Premier filed Chapter 11 on April 29, 2005, brandishing the Bankruptcy Code's automatic stay provisions to keep the agency at bay and boldly charging the MPA with various constitutional law violations, all in an adversary complaint filed in the bankruptcy court. The bankruptcy judge promptly dismissed both the charges and the Chapter 11, chiding Premier for filing a petition in bad faith solely to delay its eviction. The district court upheld the dismissal, and this appeal followed.

The Fourth Circuit Decision

From the outset, Circuit Judge J. Harvie Wilkinson III wrote that these matters demonstrate 'unfortunately, how the good and useful ends of the bankruptcy process can be badly abused' when unscrupulous parties press claims 'not for the legitimate purposes of bankruptcy,' but instead to advance a selfish agenda, in the instant case a desperate attempt to forestall eviction on a long-expired lease. The tribunal agreed with the courts below that Premier was guilty of bad faith, lacked meritorious claims, and was solely intent in tying up the state in endless, fruitless litigation.

The first point of decision for the panel was to determine if the bankruptcy court had properly dismissed the Chapter 11 as a bad faith filing. Reorganizations must be commenced in good faith, and, lacking that, summary dismissal is the remedy. This prevents abusive Chapter 11s by debtors, said the court, and safeguards the integrity of the bankruptcy system by making the statutory rights found therein available only to those with clean hands.

The Fourth Circuit employs a two-pronged test to uncover a lack of good faith in a Chapter 11 filing, compromised first of an 'objective futility' measure, which rationally focuses on whether there exists a realistic possibility of an effective reorganization. The second prong tests for 'subjective bad faith,' by asking if the Chapter 11 is motivated by an honest intent to reorganize or something more sinister. Subjective bad faith is in evidence when the case is filed to abuse the reorganization process, when it delays creditors, or otherwise inflicts hardship upon them.

Premier's defense was a bald assertion that its plan for reorganization was to litigate the MPA into giving it the lease it wanted, which the debtor so desperately needed to stay in business. The Fourth Circuit disposed of all that with two words: 'We disagree.' This debtor has no realistic possibility of reorganizing, Judge Wilkinson declared, had never filed a Chapter 11 plan, and 'had no cognizable property interest in its expired lease in Lot 90, … and no right to judicially compelled negotiations.' Premier failed the objective futility test, and failed it badly, according to the court.

As for the second prong of subjective bad faith, Premier had filed this reorganization 'for an impermissible purpose.' This purported debtor was not in a bit of financial difficulty, as it was totally solvent, with zero unsecured creditors and but a few secured creditors. Chapter 11 is for the sick, not the healthy, commented the Fourth Circuit, agreeing with one of its erudite neighbors. See, In re SGL Carbon Corp., 200 F.3d 154, 166 (3d Cir. 1999). There was simply no reason for Premier to reorganize, found Judge Wilkinson, and this fact alone would justify dismissal.

Moreover, Premier had but one adversary, the MPA, which the court noted had never failed to bargain in good faith. The tenant's claim of a right to renew its leasehold was based solely upon state law, an avenue it refused to pursue prior to filing its Chapter 11. Premier's failure 'to avail itself of the obvious state law remedies ' provide[s] further evidence of bad faith.' The final nail in the coffin was an issue of timing. The tenant filed its Chapter 11 the day before it knew it had to vacate Lot 90.

In view of all this evidence, Premier failed both the objective futility and subjective bad faith prongs, proving it lacked good faith. The Fourth Circuit made this unequivocal edict: 'Holding an asset hostage is not a permissible use of the bankruptcy process.' Here, Premier's ill-conceived strategy of employing the reorganization chapter to stop its eviction from the marine terminal and bind the MPA in unending and useless litigation was patently abusive, and merited nothing less than dismissal of the Chapter 11.

In addition, the court found dismissal was appropriate because the debtor no longer had a property interest in the expired lease for Lot 90, and by statute the automatic stay did not apply. Section 362 sets out the automatic stay of the Bankruptcy Code, the well-known proviso that bars any and all attempts by a creditor to take any action to collect a debt or exert control over an asset belonging to the debtor. Nonetheless, '362 is not without exceptions. Germane here was the exception to the stay made for a debtor's mere possessory interest in an expired lease of commercial real property. See 11 U.S.C. '362(b)(10).

In the instant case, the old lease between Premier and the MPA was precisely that: Old, in the sense of expired for nearly three years. The debtor was a mere holdover tenant at best, with a tenancy terminable at will by the state. Thus, any leasehold interest Premier had in Lot 90 was long gone, and the automatic stay was of no avail.

Estate Property Issue

Next was the estate property issue. Section 541 of the Code ranges far and wide in classifying virtually every conceivable legal or equitable interest of the debtor as property of the estate. As with most things, rules have exceptions, and '541 is no different. Implicitly, if the debtor's legal rights in an item have been terminated, it cannot be deemed estate property. But aside from that general rubric, the statute is more on point, stipulating that once a commercial real property lease expires of its own terms, it ceases to be property of the estate. See 11 U.S.C. '541(b)(2).

Here, the tribunal reiterated that the debtor's month-to-month tenancy expired no later than May 1, 2005. Therefore, the law dictated that Premier's claim to the leasehold as estate property ended the day after it filed for Chapter 11. Since the very heart of this debtor's reorganization case was a thing that it had no claim to, dismissal was an appropriate remedy.

Premier had some fight left. It still asserted that its property to be reorganized (separate and apart from the lease) was the constitutional claims it had raised against the state of Maryland and its port authority. Premier had raised a Fourteenth Amendment claim, asserting it had been denied an interest in property without due process of law, specifically the debtor's right to fair negotiations with the MPA with regard to the marine terminal lease, and, furthermore, Premier's right to do business.

The Fourth Circuit rejected these notions out of hand. It is elementary, declared Circuit Judge Wilkinson, that the Constitution does not create property rights out of whole cloth. Indeed, there is no such thing as a property right that compels one side of a deal to agree to terms that put it at a distinct disadvantage.

Distilling Premier's claim down to its essence, the Fourth Circuit found it was simply a demand that the MPA agree to what the debtor wanted, regardless of the agency's own interests. That is not a constitutionally protected property interest, held the Fourth Circuit.

Similarly, the panel disposed of Premier's allegation that it had a right to do business. The tribunal recognized the longstanding constitutional jurisprudence that there is no right to do business or to do business with someone in particular.

Equal Protection

Turning again to the Fourteenth Amendment, the debtor invoked its Equal Protection Clause, alleging the government singled it out for unfair treatment. But this debtor is not a member of any suspect class, wrote Judge Wilkinson, nor did it demonstrate some burden placed upon a fundamental right. It failed to prove it had been intentionally treated differently from others likewise situated, and without a rational basis for such disparate treatment.

'Clearly the lease provisions challenged by Premier are rationally related to a legitimate governmental objective,' found the Fourth Circuit. The throughput requirement and the relocation clause that Premier so vociferously opposed had a rational relationship to the agency's obligation to ensure the maximum utilization of the marine terminal land. The MPA had asked this clause of every tenant similar to Premier. Premier was not treated differently from any other tenant.

Finally, the Fourth Circuit found Premier's constitutional claims 'tenuous at best,' and they 'carry us far afield from the purposes of bankruptcy law in general and Chapter 11 petitions in particular.' Reorganization, it posited, gives distressed businesses the room to return to prosperity. 'To allow resort to the bankruptcy process for plainly meritless constitutional claims advanced solely to thwart lawful eviction would do nothing but subvert the purposes of a Chapter 11.'

This tribunal castigated the debtor for 'creatively refashioning' a plain vanilla contract dispute into a bankruptcy case and/or a constitutional controversy solely to thwart its eviction from a property where it had long lacked a lease. Speaking in defense of the paramount mission of the bankruptcy courts, the Fourth Circuit concluded that were this kind of litigation to be permitted in the bankruptcy forum, then bankruptcy courts 'would be well on their way to becoming courts of general jurisdiction,' an outcome not countenanced by law and certainly not desirable in the least. The dismissal was upheld, and Premier's eviction from the bankruptcy court was as complete and as final as its ouster from the Baltimore waterfront.

Relevance to Equipment Leasing

To begin our analysis, we acknowledge that this is, strictly speaking, not an equipment leasing case. Yet in truth, is this scenario all the different from issues that equipment lessors confront in Chapter 11s? The major points are the same.

The good faith requirement for bankruptcy filings is a gatekeeper that keeps out ill-intended petitions, typically cases filed by nominally solvent entities that seek advantage against a counterparty. The instant case sticks out because Premier clearly had locked horns with one and only one creditor. These 'single creditor' vendettas are improper, and the law exposited here gives us a means to get rid of them.

When testing for first objective futility and then subjective bad faith to ascertain a lack of good faith, we first ask if there is really something here to reorganize. If not, then the Chapter 11 is an exercise in futility. The subjective bad faith test, by its intrinsic nature, is a bit harder to get a handle on; after all, it is subjective. But the general guideposts of honest intent vis-'-vis improper purpose, abuse of the process, and an intent to stymie creditors are all powerful benchmarks that any particular misdeeds can be measured against.

The statues are most availing as well. Taking first '541, simply put, a debtor cannot bring into its estate that which it does not own. Separating fact from fantasy as to what a debtor truly has to reorganize with is a key step in combating abusive filings. The proper functioning of the automatic stay follows the same trail, as that umbrella of protection does not extend to things where the debtor no longer enjoys rights of possession.

Finally, in this case were the 'creative' constitutional arguments of this debtor. The Fourth Circuit confirmed that there is simply no constitutional right to do business, no right to contractual negotiations, and most especially no right to get the contract that you want, to the detriment of the other guy. This is all common sense, jurisprudence aside, but it is comforting to know that a recent case spells it out. The point is such judicial language can be a great help in defeating the misguided stubbornness of an opposing party that insists it has a 'constitutional right' to do business with you, but on its terms. Premier reaffirms that sensibility.

At the end of the day, the Fourth Circuit in Premier restored law and order to the Baltimore waterfront. In making it clear that an aggrieved lessee could not subvert the Chapter 11 process, the tribunal not only helped that lessor, but a great many others who from time-to-time confront such an attempt to abuse the Bankruptcy Code.

Anthony Michael Sabino is a Professor of Law at the Peter J. Tobin College of Business, St. John's University, NY. He practices at Sabino & Sabino, P.C., and can be reached at 516-294-3199 and at www.sabinolaw.com. This article is dedicated to the memory of Mary Jane C. Sabino, attorney, professor, and beloved spouse.

The U.S. Supreme Court has often declared that the bankruptcy court is a place strictly reserved for 'honest debtors.' And while that connotes individuals, there is no escaping the implication that it is just as applicable to businesses that should only be seeking to advance legitimate ends via the bankruptcy process. Yet, an even more direct admonition to all who may file a bankruptcy case is the requirement of 'good faith,' a concept general enough to be adaptable, but strict enough to require entrants to come into the proceedings with the proverbial 'clean hands.'

Unfortunately, not every entity is as high-minded when it files for bankruptcy protection. These malefactors particularly usurp the reorganization process of Chapter 11, since its avowed goal of preserving an existing business provides an opportunity for the unscrupulous to remain in control and bend the law to their own less-than-honest ends.

Fortunately, the bankruptcy courts have the ability to ferret out such wrongdoing. Our subject today is a most recent example of some not-so-nice folks attempting to twist the Chapter 11 process to their own selfish ends, and how the prestigious U.S. Court of Appeals for the Fourth Circuit quite handily sent them packing.

Factual Background

The case is Maryland Port Administration v. Premier Automotive Services, Inc. (In re Premier Automotive Services, Inc.), ___ F.3d ___ (No. 06-2207) (4th Cir. June 15, 2007). Premier was an import-export concern that regularly processed thousands of trucks and pieces of heavy equipment at the port of Baltimore, on land leased from the Maryland Port Administration (the 'MPA'). That parcel was known as 'Lot 90,' approximately six and one-half acres located at Baltimore's Dundalk Marine Terminal. Premier had been a tenant for more than 40 years under a succession of agreements, the most recent having expired on June 30, 2002.

Prior to that date, the MPA and Premier engaged in negotiations to renew the lease for an additional five years. The agency insisted that the renewal contain a 'throughput' requirement, in other words a guarantee that the tenant would move at least 1700 vehicles annually per acre through Lot 90. The agency also wanted the freedom to relocate Premier elsewhere within the terminal grounds, if it deemed necessary. Premier would not agree, so a new lease was never executed. Notwithstanding the lack of a lease, Premier refused to leave and assumed status as a month-to-month 'holdover' tenant.

Negotiations over the next three years went nowhere. Yet, Premier remained on site well into 2005, still without a lease. In January 2005, the MPA entered into a new lease for Lot 90 with another automotive importer/exporter, which apparently agreed to all the agency's terms (particularly the 1700 vehicle throughput requirement and the relocation clause). In March 2005, the agency demanded Premier vacate, making it known that it had a new tenant for the parcel, and it was time for Premier to get out. To be sure, the MPA unequivocally notified Premier that the existing month-to-month tenancy would terminate on May 1.^.

Premier filed Chapter 11 on April 29, 2005, brandishing the Bankruptcy Code's automatic stay provisions to keep the agency at bay and boldly charging the MPA with various constitutional law violations, all in an adversary complaint filed in the bankruptcy court. The bankruptcy judge promptly dismissed both the charges and the Chapter 11, chiding Premier for filing a petition in bad faith solely to delay its eviction. The district court upheld the dismissal, and this appeal followed.

The Fourth Circuit Decision

From the outset, Circuit Judge J. Harvie Wilkinson III wrote that these matters demonstrate 'unfortunately, how the good and useful ends of the bankruptcy process can be badly abused' when unscrupulous parties press claims 'not for the legitimate purposes of bankruptcy,' but instead to advance a selfish agenda, in the instant case a desperate attempt to forestall eviction on a long-expired lease. The tribunal agreed with the courts below that Premier was guilty of bad faith, lacked meritorious claims, and was solely intent in tying up the state in endless, fruitless litigation.

The first point of decision for the panel was to determine if the bankruptcy court had properly dismissed the Chapter 11 as a bad faith filing. Reorganizations must be commenced in good faith, and, lacking that, summary dismissal is the remedy. This prevents abusive Chapter 11s by debtors, said the court, and safeguards the integrity of the bankruptcy system by making the statutory rights found therein available only to those with clean hands.

The Fourth Circuit employs a two-pronged test to uncover a lack of good faith in a Chapter 11 filing, compromised first of an 'objective futility' measure, which rationally focuses on whether there exists a realistic possibility of an effective reorganization. The second prong tests for 'subjective bad faith,' by asking if the Chapter 11 is motivated by an honest intent to reorganize or something more sinister. Subjective bad faith is in evidence when the case is filed to abuse the reorganization process, when it delays creditors, or otherwise inflicts hardship upon them.

Premier's defense was a bald assertion that its plan for reorganization was to litigate the MPA into giving it the lease it wanted, which the debtor so desperately needed to stay in business. The Fourth Circuit disposed of all that with two words: 'We disagree.' This debtor has no realistic possibility of reorganizing, Judge Wilkinson declared, had never filed a Chapter 11 plan, and 'had no cognizable property interest in its expired lease in Lot 90, … and no right to judicially compelled negotiations.' Premier failed the objective futility test, and failed it badly, according to the court.

As for the second prong of subjective bad faith, Premier had filed this reorganization 'for an impermissible purpose.' This purported debtor was not in a bit of financial difficulty, as it was totally solvent, with zero unsecured creditors and but a few secured creditors. Chapter 11 is for the sick, not the healthy, commented the Fourth Circuit, agreeing with one of its erudite neighbors. See, In re SGL Carbon Corp., 200 F.3d 154, 166 (3d Cir. 1999). There was simply no reason for Premier to reorganize, found Judge Wilkinson, and this fact alone would justify dismissal.

Moreover, Premier had but one adversary, the MPA, which the court noted had never failed to bargain in good faith. The tenant's claim of a right to renew its leasehold was based solely upon state law, an avenue it refused to pursue prior to filing its Chapter 11. Premier's failure 'to avail itself of the obvious state law remedies ' provide[s] further evidence of bad faith.' The final nail in the coffin was an issue of timing. The tenant filed its Chapter 11 the day before it knew it had to vacate Lot 90.

In view of all this evidence, Premier failed both the objective futility and subjective bad faith prongs, proving it lacked good faith. The Fourth Circuit made this unequivocal edict: 'Holding an asset hostage is not a permissible use of the bankruptcy process.' Here, Premier's ill-conceived strategy of employing the reorganization chapter to stop its eviction from the marine terminal and bind the MPA in unending and useless litigation was patently abusive, and merited nothing less than dismissal of the Chapter 11.

In addition, the court found dismissal was appropriate because the debtor no longer had a property interest in the expired lease for Lot 90, and by statute the automatic stay did not apply. Section 362 sets out the automatic stay of the Bankruptcy Code, the well-known proviso that bars any and all attempts by a creditor to take any action to collect a debt or exert control over an asset belonging to the debtor. Nonetheless, '362 is not without exceptions. Germane here was the exception to the stay made for a debtor's mere possessory interest in an expired lease of commercial real property. See 11 U.S.C. '362(b)(10).

In the instant case, the old lease between Premier and the MPA was precisely that: Old, in the sense of expired for nearly three years. The debtor was a mere holdover tenant at best, with a tenancy terminable at will by the state. Thus, any leasehold interest Premier had in Lot 90 was long gone, and the automatic stay was of no avail.

Estate Property Issue

Next was the estate property issue. Section 541 of the Code ranges far and wide in classifying virtually every conceivable legal or equitable interest of the debtor as property of the estate. As with most things, rules have exceptions, and '541 is no different. Implicitly, if the debtor's legal rights in an item have been terminated, it cannot be deemed estate property. But aside from that general rubric, the statute is more on point, stipulating that once a commercial real property lease expires of its own terms, it ceases to be property of the estate. See 11 U.S.C. '541(b)(2).

Here, the tribunal reiterated that the debtor's month-to-month tenancy expired no later than May 1, 2005. Therefore, the law dictated that Premier's claim to the leasehold as estate property ended the day after it filed for Chapter 11. Since the very heart of this debtor's reorganization case was a thing that it had no claim to, dismissal was an appropriate remedy.

Premier had some fight left. It still asserted that its property to be reorganized (separate and apart from the lease) was the constitutional claims it had raised against the state of Maryland and its port authority. Premier had raised a Fourteenth Amendment claim, asserting it had been denied an interest in property without due process of law, specifically the debtor's right to fair negotiations with the MPA with regard to the marine terminal lease, and, furthermore, Premier's right to do business.

The Fourth Circuit rejected these notions out of hand. It is elementary, declared Circuit Judge Wilkinson, that the Constitution does not create property rights out of whole cloth. Indeed, there is no such thing as a property right that compels one side of a deal to agree to terms that put it at a distinct disadvantage.

Distilling Premier's claim down to its essence, the Fourth Circuit found it was simply a demand that the MPA agree to what the debtor wanted, regardless of the agency's own interests. That is not a constitutionally protected property interest, held the Fourth Circuit.

Similarly, the panel disposed of Premier's allegation that it had a right to do business. The tribunal recognized the longstanding constitutional jurisprudence that there is no right to do business or to do business with someone in particular.

Equal Protection

Turning again to the Fourteenth Amendment, the debtor invoked its Equal Protection Clause, alleging the government singled it out for unfair treatment. But this debtor is not a member of any suspect class, wrote Judge Wilkinson, nor did it demonstrate some burden placed upon a fundamental right. It failed to prove it had been intentionally treated differently from others likewise situated, and without a rational basis for such disparate treatment.

'Clearly the lease provisions challenged by Premier are rationally related to a legitimate governmental objective,' found the Fourth Circuit. The throughput requirement and the relocation clause that Premier so vociferously opposed had a rational relationship to the agency's obligation to ensure the maximum utilization of the marine terminal land. The MPA had asked this clause of every tenant similar to Premier. Premier was not treated differently from any other tenant.

Finally, the Fourth Circuit found Premier's constitutional claims 'tenuous at best,' and they 'carry us far afield from the purposes of bankruptcy law in general and Chapter 11 petitions in particular.' Reorganization, it posited, gives distressed businesses the room to return to prosperity. 'To allow resort to the bankruptcy process for plainly meritless constitutional claims advanced solely to thwart lawful eviction would do nothing but subvert the purposes of a Chapter 11.'

This tribunal castigated the debtor for 'creatively refashioning' a plain vanilla contract dispute into a bankruptcy case and/or a constitutional controversy solely to thwart its eviction from a property where it had long lacked a lease. Speaking in defense of the paramount mission of the bankruptcy courts, the Fourth Circuit concluded that were this kind of litigation to be permitted in the bankruptcy forum, then bankruptcy courts 'would be well on their way to becoming courts of general jurisdiction,' an outcome not countenanced by law and certainly not desirable in the least. The dismissal was upheld, and Premier's eviction from the bankruptcy court was as complete and as final as its ouster from the Baltimore waterfront.

Relevance to Equipment Leasing

To begin our analysis, we acknowledge that this is, strictly speaking, not an equipment leasing case. Yet in truth, is this scenario all the different from issues that equipment lessors confront in Chapter 11s? The major points are the same.

The good faith requirement for bankruptcy filings is a gatekeeper that keeps out ill-intended petitions, typically cases filed by nominally solvent entities that seek advantage against a counterparty. The instant case sticks out because Premier clearly had locked horns with one and only one creditor. These 'single creditor' vendettas are improper, and the law exposited here gives us a means to get rid of them.

When testing for first objective futility and then subjective bad faith to ascertain a lack of good faith, we first ask if there is really something here to reorganize. If not, then the Chapter 11 is an exercise in futility. The subjective bad faith test, by its intrinsic nature, is a bit harder to get a handle on; after all, it is subjective. But the general guideposts of honest intent vis-'-vis improper purpose, abuse of the process, and an intent to stymie creditors are all powerful benchmarks that any particular misdeeds can be measured against.

The statues are most availing as well. Taking first '541, simply put, a debtor cannot bring into its estate that which it does not own. Separating fact from fantasy as to what a debtor truly has to reorganize with is a key step in combating abusive filings. The proper functioning of the automatic stay follows the same trail, as that umbrella of protection does not extend to things where the debtor no longer enjoys rights of possession.

Finally, in this case were the 'creative' constitutional arguments of this debtor. The Fourth Circuit confirmed that there is simply no constitutional right to do business, no right to contractual negotiations, and most especially no right to get the contract that you want, to the detriment of the other guy. This is all common sense, jurisprudence aside, but it is comforting to know that a recent case spells it out. The point is such judicial language can be a great help in defeating the misguided stubbornness of an opposing party that insists it has a 'constitutional right' to do business with you, but on its terms. Premier reaffirms that sensibility.

At the end of the day, the Fourth Circuit in Premier restored law and order to the Baltimore waterfront. In making it clear that an aggrieved lessee could not subvert the Chapter 11 process, the tribunal not only helped that lessor, but a great many others who from time-to-time confront such an attempt to abuse the Bankruptcy Code.

Anthony Michael Sabino is a Professor of Law at the Peter J. Tobin College of Business, St. John's University, NY. He practices at Sabino & Sabino, P.C., and can be reached at 516-294-3199 and at www.sabinolaw.com. This article is dedicated to the memory of Mary Jane C. Sabino, attorney, professor, and beloved spouse.