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Bankruptcy Proceedings Related to Defamation Claims Do Not Fall Under the Personal Injury Tort Exception of 28 U.S.C. § 157(b)(2)(B)

By: Joseph Collini

St. John’s Law Student

American Bankruptcy Institute Law Review Staff


            A bankruptcy court generally does not have jurisdiction over personal injury tort claims.[1]  28 U.S.C. § 157(b) states that bankruptcy courts have jurisdiction to hear “all core proceedings,”[2] and goes on to define which proceedings are “core.”[3] Subsection (b)(2)(B), the personal injury tort exception, removes all personal injury torts from the bankruptcy court’s jurisdiction.[4] In In re Gawker Media LLC, the Bankruptcy Court for the Southern District of New York held that the “personal injury tort” exception of 28 U.S.C. § 157(b)(2)(B) does not apply to tort claims for defamation.[5]

Charles Johnson and his company, Got News LLC, filed a complaint alleging various torts,[6] including defamation and injurious falsehood, against Gawker Media LLC for publishing and proliferating an article that allegedly falsely criticized Johnson’s professional and personal integrity.[7] Shortly after Johnson filed this lawsuit, Gawker Media filed a voluntary petition under Chapter 11 of the United States Bankruptcy Code thereby automatically staying the civil action against Gawker.[8] Johnson, wanting to expedite the civil action against Gawker, filed Omnibus Objections[9] to the claims arguing that the bankruptcy court lacked jurisdiction because the underlying claims fell under the “personal injury tort” exception of 28 U.S.C. § 157(b)(2)(B).[10]

In analyzing whether the claims were “personal injury tort claims” within the meaning of U.S.C. § 157(b)(2), the bankruptcy court noted that there were three views of the personal injury tort exception.[11] First, some courts have adopted the narrow view, which removes from the bankruptcy court’s jurisdiction only those torts related to the plain sense meaning of the phrase “personal injury tort.”[12] Second, other courts have adopted the broad view, which expands the meaning of personal injury tort to a wide range of tort claims including those for libel and slander.[13] Finally, other courts have adopted a hybrid approach, which includes torts for libel and slander, but specifically refuses to expand the exception as far as the broad view.[14]

Here, the court adopted the “narrow view”[15], limiting the personal injury exception to “claims involving bodily injury, physical trauma, and/or a severe psychiatric impairment beyond mere shame and humiliation.”[16] In doing so, the court explained that both the canons of construction and the legislative history behind the exception support its definition.[17] Ultimately, the court decided it had jurisdiction over the case because Johnson’s claim was not a personal injury tort.[18] The court also rejected the notion that the “emotional” injuries alleged were sufficient to transform the claim into a personal injury tort subject to the exception under 28 U.S.C. § 157(b)(2)(B).[19]

            Neither Title 28 nor the Second Circuit has expressly defined the term “personal injury tort” as it pertains to § 157 and bankruptcy cases.[20] However, several lower courts in the Second Circuit have created their own interpretations of the exception, yielding the three approaches described above: the narrow view, the broad view, and the hybrid approach.[21]

The Gawker court did not adopt a novel interpretation of the personal injury tort exception with its holding. Instead, the bankruptcy court adopted the approach embraced by the Southern District of New York in Perino v. Cohen.[22] Until Congress amends the statute or the Supreme Court for the Second Circuit issues a controlling ruling, future lower courts in the Southern District of New York will have to decide for themselves which of these three approaches to adopt. These courts may even adopt a wholly different interpretation of the statute as well.



[1] See 28 U.S.C. § 157 (b).

[2] See Id. at (b)(1).

[3] See Id. at (b)(2).

[4] See Id. at (b)(2)(B)

[5] In re Gawker Media LLC, 571 B.R. 612 (Bankr. S.D.N.Y. 2017).

[6] See Id. at 617.

[7] See Id. at 616 (“The Gawker Articles included statements criticizing Johnson's honesty as a reporter and his professional skills as a journalist.” “The Gawker Articles also cited ‘rumors’ that Johnson had defecated in public and engaged in bestiality.”).

[8] See Id. at 616.

[9] Fed. R. Bankr. P. 3007, Omnibus Objection to Claims.

[10] See Id. at 618.

[11] See Id. at 620

[12] See Id.

[13] See Id.

[14] See Id.

[15] See Id.

[16] Id. at 625.

[17] See Id. at 620 – 623 (explaining first that the statutory canon of noscitur a sociis states that a word should be interpreted by the words around it (since the exception includes the term “wrongful death,” the personal injury tort exception should also require bodily harm); and further explaining that the congressional debates surrounding the ratification of the exception focused on asbestos cases in Bankruptcy Court (which were wrongful death actions or actions involving bodily harm).

[18] See Id. at 625.

[19] See Id. at 623 (“Incidental claims of emotional injury do not suffice to transform a tort claim into personal injury tort when it otherwise would not be.”).

[20] In re Residential Capital, LLC, 536 B.R. 566, 571 (Bankr. S.D.N.Y. 2015).

[21] See In re Gawker Media LLC, at 620.  

[22] See Perino v. Cohen (In re Cohen), 107 B.R. 453, 455 (S.D.N.Y. 1989) (holding claims based on violating New York's anti-discrimination law “is not a claim for a ‘personal injury tort’ in the traditional, plain-meaning sense of those words, such as a slip and fall, or a psychiatric impairment beyond mere shame and humiliation,” and “[t]here is no legislative history that would bring this plaintiff's claim for a tort without trauma within the statutory exception for a personal injury tort.”)