“I’m sorry, Dave. I’m afraid I can’t do that.” – HAL 9000, 2001: A Space Odyssey
The automatic stay set forth in section 362 of the Bankruptcy Code, is one of the hallmarks of bankruptcy – if debtors are not afforded a breathing spell within which to organize their affairs, they stand little chance of successfully resolving their affairs, be it through a liquidation or a reorganization. Indeed, the effort to impose order on creditors seeking payment of claims was likely one of the main drivers of the creation of the modern bankruptcy regime. To ensure that the automatic stay is honored, section 362(k)(1) of the Bankruptcy Code provides for recovery of costs by a debtor in the event that a creditor willfully violates the automatic stay. Those damages can include attorneys’ fees and, in some cases, punitive damages. The automatic stay is a force to be reckoned with, and its bar on premature acts to assert prepetition claims is not to be taken lightly.
So what about non-human actors? As the Supreme Court has taught us over the past few years, though, people aren’t just “people.” Can automated systems violate the stay? And if so, can such a violation be “willful?”