Why you should attend
The credit markets continue to be volatile and in today’s weak economy, staying abreast of the current developments in restructuring, bankruptcy and reorganizations is essential. This advanced conference assembles a remarkable faculty of bankruptcy judges and leading practitioners who will provide you with a thorough review and analysis of hot topics, developments, and recent decisions in diverse industries. They will cover the ramifications of the Supreme Court’s decision of
Stern v. Marshall, and subsequent decisions and Rules, and their practical implications on jurisdiction, administration of business cases and bankruptcy litigation. The faculty will also address a practical review of recent cases and trends that affect your practice on behalf of debtors, vendors, bondholders, lenders, diverse groups of creditors, hedge funds, committees, labor, and parties to executory contracts, structured finance deals, and other transactions. There will be special focus on valuation issues. Equip yourself with strategies and litigation tactics you can use daily, and feel confident advising your clients in these evolving areas of the law. Ethical issues will be covered.
What you will learn
- Current market and legal developments
- Stern v. Marshall and subsequent appellate cases - drastic implications for bankruptcy and reorganization cases?
- American Airlines, Hostess, MF Global, Lehman, General Motors, WaMu, Madoff, Bayou, Tousa; Vitro
- Structured and complex finance developments - repos, swaps, forward contracts, derivatives, SPVs - see MF Global, Lehman and General Growth
- Corporate governance and the powers and duties of DIPs and of their boards; D&O liability, insurance and damage issues - deepening insolvency
- How to recognize ethical issues and avoid missteps in your bankruptcy and reorganization cases
- Controversies on sales of assets free and clear under Sections 363 and 1129 and bid procedures and protections - Los Angeles Dodgers, General Motors, Chrysler, Texas Rangers, River Road; Clear Channel and progeny
- New developments regarding unsecured and secured claims and labor issues and claims
- Section 502(b)(6) cap on lessor’s rent claims, security deposits and L/Cs
- Defenses to voidable preference attacks, including new value and § 546(e)
- Fraudulent conveyances, LBOs and safe harbors; section 546(e), valuation issues; in pari delicto and Ponzi issues and defenses
- Executory contracts and leases - Sunbeam; cf. Lubrizol; Section 365(n)
- Enforcing Intercreditor agreements, subordination and related litigation issues - West Point Stevens, Ion Media;
- Boston Generating; StuyTown; Euro Directories
- New developments on plan proposals, disclosure statements and confirmation of a plan
- International and cross-border insolvencies, inbound and outbound - Chapters 11 and 15
Who should attend
This is a current developments program and is designed for a wide range of restructuring, bankruptcy, reorganization and other transactional practitioners, litigators, in-house counsel and others who are involved in restructurings and insolvency cases. They should have at least basic knowledge of defaults, the Bankruptcy Code, rules and procedures. This program will help transactional, litigation, and intellectual property lawyers prepare for and deal with defaults, restructurings, and sales of distressed assets.
Day One: 9:00 a.m. - 5:00 p.m.
Morning Session: 9:00 a.m. - 12:30 p.m.
9:00
Introduction
Joseph Samet
9:15
Potpourri of Current Market Developments in Chapter 7 and 11 Business Cases - MF Global, Lehman, GM,
Madoff, Bayou, General Growth, WaMu, Vitro, et al.
- Marketplace changes and speed of cases
- 2011 Amendments to the Federal Rules of Bankruptcy Procedure and key local rules
- Supreme Court decisions - Stern v. Marshall progeny; RadLax; et al
- Legislative winds of change - Code and Rules
- Voluntary and involuntary bankruptcy eligibility issues - MF Global, General Growth and SPEs; financial institutions and parents; Dodd-Frank; “good faith”
- Limitations on KERPS and KEIPs - case developments
- Reclamation claims and § 503(b)(9) priority issues
- Structured finance developments under §§ 555-562 - credit default swaps; derivatives in bankruptcy; enforcement of rights under financial products - Lehman, Dante, Metavante
- Preferences and fraudulent conveyances - § 546(e)
- Intercreditor agreements and subordination
- “Unfinished business” law and developments - Dewey, Coudert, Heller, Brobeck, et al
- Mediation
- Cross-border (Vitro); sovereign debt issues
Andrew P. DeNatale, Joseph Samet
10:15
Current Jurisdictional and Procedural Issues - Stern v. Marshall, Madoff et al.
- Exclusive and non-exclusive jurisdiction - Stern v. Marshall and progeny; local rules
- Withdrawal of the reference
- Appeals to the U.S. District Court, the BAP, and the Circuit Court of Appeals
- Abstention
- Remand and removal
- Litigation in the Bankruptcy and District Courts
- Post-confirmation jurisdiction
- Venue - Patriot Coal
- Issues involving enforceability of arbitration clauses
Hon. Robert D. Drain, Jane Rue Wittstein
11:15
Networking Break
11:30
DIP Financing and Other Lending Issues; First Day Order
- DIP financing, first lien, priming and super priority lending
- Subordinating existing secured debt
- “Loan to Own” strategy
- Use of cash collateral and surcharge
- Expense of administration priority for post-petition trade debt
- First day orders
- Prepayment, make whole, and other loan fees
Michael L. Cook, Lynn P. Harrison 3rd
12:30
Lunch
Afternoon Session: 1:45 p.m. - 5:00 p.m.
1:45
Creditors’ Committees, Examiners, Role of the U.S. Trustee and Ethics
Current developments on:
- Critical issues for the U.S. Trustee in Chapter 11 cases, including appointments, solicitation and venue issues; proposed new fee guidelines
- Committee and examiner functions and selection processes, Rule 2019
- Duties and powers - scope of disclosure to creditors - Refco
- Compensation; liability and exculpatory provisions for professionals
- Ethical issues
Andrew P. DeNatale, Michael P. Richman
2:45
Ethical Issues (Continued); The Automatic Stay and Avoiding Powers
- Ethical issues - continued
- Changes on scope of stay and exceptions - extraterritoriality (Lyondell)
- Relief from stay; criteria and litigation
- Standing of creditors and committees to avoid transfers
- Valuation disputes in stay and avoidance litigation
- Voidable preferences; the ordinary course, paid and unpaid new value, subsequent advance and earmarking defenses; § 546(e)
- Insider preferences - Schubert v. Lucent
- Fraudulent transfers - UFTA, Bankruptcy Code Sections 544(b) and 548; Ponzi cases; § 546(e); Tousa appellate decisions
Michael L. Cook, Michael P. Richman
3:45
Networking Break
4:00
Avoiding Powers (Continued); Treatment of Claims: Allowance and Priority
- Labor, severance and employee claims
- Collective bargaining agreements; American, Hostess
- Landlord caps and letters of credit
- Late claims; class claims; tort claims; CERCLA
- Oversecured and unsecured creditors’ attorney and other professional fees - Ogle v. Fidelity, SNTL
Babette A. Ceccotti, Michael L. Cook
5:00
Adjourn
Day Two: 9:00 a.m. - 4:45 p.m.
Morning Session: 9:00 a.m. - 12:15 p.m.
9:00
Executory Contracts
- Current cases; Sunbeam cf. Lubrizol; Hostess
- Enforceability, if any, of post-petition performance
- Leases as disguised security agreements
- Retroactive lease rejections
- Treatment of IP, license and franchise agreements; § 365(n) cases
- Assumption or rejection (Catapult fallout)
- Collective bargaining agreements and rejection standards - American Airlines, Hostess et al
Brian S. Hermann, Gerald F. Munitz
10:00
Intercreditor Agreements and Subordination; Setoff; Consolidation
- Intercreditor agreements - types, multiple tranches, senior/junior, mezzanine, shared collateral; unitranche
- Contractual subordination - intercreditor agreements; silent seconds (Ion Media)
- Recharacterization and disallowance of claims
- Equitable subordination (Kreisler and Yellowstone)
- Mutuality in setoff; cross-affiliate setoff and netting; SemCrude
- Substantive consolidation
Lynn P. Harrison 3rd, Joseph Samet
11:00
Networking Break
11:15
Acquiring Assets from the Debtor Estate, Corporate Governance and D&O Duties and Liability
- Process, procedures and litigation - break-up and topping fees
- Structuring and negotiating bids - Los Angeles Dodgers; Texas Rangers, GM, Chrysler, and small and medium cases
- Sales free and clear and grounds for objections - cf. Clear Channel and progeny
- Bidding in during a 363 sale and plan confirmation - River Road; Innkeepers
- Successor liability and future claims
- Assignments and sales
- Licenses, trademarks and patents in sales
- Valuations in sales
- Hearings, appeals and mootness - GM, Chrysler
- Corporate governance issues and bankruptcy; state and international law
- Liability, insurance and fiduciary duties of officers and directors of insolvent debtors; deepening insolvency liability and damages law
- D&O claims held by the estate and third parties
Gerald F. Munitz, Joseph Samet
12:15
Lunch
Afternoon Session: 1:30 p.m. - 4:45 p.m.
1:30
Plan Formulation and Negotiation
- Modified exclusivity
- Pre-packaged plans and SEC rules
- Lockups and exit financing
- Classification of claims
- “Gifting” and “death trap”; DBSD
- Post-petition interest issues; make whole and prepayment premiums
- Reinstatement of debt - Charter
- New value plans - LaSalle and progeny
- Debt for equity swaps
- Exit financing
- Valuation issues
- Third-party releases, exculpations, contribution and injunctions
Martin J. Bienenstock, Hon. Allan L. Gropper, Joseph Samet
2:30
Disclosure Statements and Plan Confirmation
- Required disclosures, new Rule 2019 objections, and Rule 3016
- Trading in claims - DBSD
- Blocking positions
- Voting claims - designating claims - DBSD
- Soliciting votes
- Cramdown plans
- Objections to confirmation - Chrysler, DBSD
- MAC clauses
- Appeals and mootness
- Post-confirmation defaults, litigation and jurisdiction
Martin J. Bienenstock, Hon. Allan L. Gropper, Gerald F. Munitz
3:30
Networking Break
3:45
Cross-Border Insolvencies and Chapter 15
- Chapter 15 replacing Section 304 Ancillary Proceedings - Vitro, Bear Stearns, Basis, SPhinX
- Concurrent, same entity, cross-border cases
- Foreign main and non-main proceedings
- Challenging recognition and enforcing controversial foreign plans
- Section 109 eligibility and the foreign debtor
- Current cases
- Argentina
Judith Elkin, Hon. Allan L. Gropper, Joseph Samet
4:45
Adjourn
Chairperson(s)
Speaker(s)
Program Attorney(s)
New York City Seminar Location
PLI New York Center, 810 Seventh Avenue at 53rd Street (21st floor), New York, New York 10019. Message Center, program days only: (212) 824-5733.
New York City Hotel Accommodations
The New York Hilton & Towers1335 Avenue of the Americas, New York, NY 10019. 1 block from PLI Center. Reservations 1-800-HILTONS or, 1-877-NYC-HILT. Please mention that you are booking a room under the Practising Law Institute Corporate rate and the Client File # is 0495741. You can also
make reservations online to access Practising Law Institute rates.
The Warwick New York Hotel, 65 West 54th Street New York, NY 10019. 1 block from PLI Center. Reservations 800-223-4099 or, hotel direct 212-247-2700. Please mention that you are booking a room under the Practising Law Institute Corporate rate. Reservations on line at www.warwickhotelny.com Click reservations in menu bar on left. Select desired dates. In 'Special Rates' drop down window select Corporate Rate. In 'Rate Code' enter PLIN. Click search and select desired room type and rate plan. Or, you may email reservation requests to: res.ny@warwickhotels.com
Sheraton New York Hotel & Towers, 811 7th Avenue, New York, NY 10019, 1-800-325-3535 or (212) 581-1000. When calling, please mention Practising Law Institute and mention SET#311155. You may also book
online.
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