Unsecured Trade Creditor Committee Meeting Minutes
2007 Annual Spring Meeting
The joint meeting of the
Unsecured Trade Creditors Committee and New Members Committee was held
on Saturday, April 14, 2007 at 4:00 p.m. The UTC Committee initially held a brief business meeting to
discuss the development of the a task force to review and
Debbie Thorne, Bruce Nathan and Brian Shaw led an informal discussion concerning lesser known remedies for unsecured creditors. Issues such as setoff and recoupment, statutory and common law liens, joint check agreements and various UCC Article 2 remedies were discussed.
2006 Annual Spring Meeting
The Unsecured Trade Creditors’ Committee convened on Saturday, April 22, 2006, at the Annual Spring Meeting in Washington, D.C. This was a joint session with the UCC Committee. The Co-Chairs Deborah Thorne and Bruce Nathan, called the meeting to order and had a short discussion about UTC’s five active Task Forces, Preference, Reclamation, Creditors’ Committee, Listserve and Publications/Newsletter.
The remainder of the meeting involved a panel discussion on Bankruptcy Issues That Impact Trade Creditors in Automotive Cases. The participants included: Patrick Mears of Barnes & Thornburg LLP, Jim Gillette of CSM Worldwide, Val Venable of GE Plastics and Hideyuki Sakai of Sakai & Mimura, a Tokyo law firm.
The meeting of the Unsecured Trade Creditors Committee was held on Saturday, December 3, 2005 at 11:15 a.m. The Committee initially held a brief business meeting to discuss the development of task forces concerning creditors committees, preference defenses, preference law and reclamation. These task forces would coordinate necessary revisions to existing handbooks published through the committee, prepare periodic case law updates in their respective subject areas and assist in the preparation and planning of committee meeting programs. Finally, committee members discussed alternatives for cultivating greater participation by non-lawyer, credit and bankruptcy professionals such as, but not limited to, credit managers.
Bruce Nathan led a spirited discussion concerning the new bankruptcy code reclamation provisions and whether they in fact provide trade creditors with any additional assurance of payment. This discussion was followed by a similarly spirited discussion concerning the new creditor committee provisions of the bankruptcy code and the desirability of trade creditors to continue to serve on such committees.
The meeting of the Unsecured Trade Creditors Committee was held at the Winter Leadership Conference in Scottdsale on Dec. 4, 2004. The meeting was highlighted by a well-attended presentation concerning the preservation of reclamation claims in the Fleming Companies, Inc. bankruptcy case. The outstanding panel, describing what began as an informal reclamation committee designed to preserve the eroding treatment of reclamation claims proposed by the debtor and which was ultimately recognized by the court as the Reclamation Committee, included S. Curtis Marshall (Credit Manager for Sara Lee), Bernie Katz and Kevin Clancy of J.H. Cohn LLP (the financial advisors to the Reclamation Committee), Daniel Carrigan, Mark Friedman and Janice Duban (partners at Piper Rudnick, the RC counsel) and Sandra Schirmang (Senior Credit Manager for Kraft Foods Inc.). The panel described the trials and tribulations encountered by the informal committee in organizing a reaction and response to various first-day orders likely to impact the rights of reclaiming creditors, conflicts arising with the unsecured creditors’ committee as it became more and more clear that the rights of reclaiming creditors were being reduced to non-priority unsecured claims and the eventual recognition of a formal Reclamation Committee.
The presentation was followed by a brief committee meeting. Committee Co-chair Deborah Thorne announced the pending Preference Defense Handbook was in the process of a final edit draft, with a target final publication date of no later than the 2005 Annual Spring Meeting. Co-chairs Doug Fox, Deborah Thorne and Berry Spears are presently discussing the compilation of a committee meeting presentation for the Annual Spring Meeting in April 2005, in Washington, D.C. Please contact one of them if you have any suggestions.
A combined meeting between the Unsecured Trade Creditor Committee and Public Companies Committee was highlighted by a presentation concerning claims-buying and selling. The outstanding panel presenting what was officially entitled "Cutting-edge Business and Legal Issues Concerning Buying and Selling of Trade Receivables and Distressed Non-Public Paper" included Andrew I. Silfen of the Arent Fox Firm, with Matthew A. Gold of Argo Partners undertaking the position of the claims buyer and Joseph E. Myers, CCE of the Clear Thinking Group Inc., relating his experience as a "claim seller."
The presentation was followed by a brief committee meeting. Committee Member Bruce Nathan suggested that the committee renew its efforts to take advantage of a committee listserve for sharing ideas, issues and unpublished opinions. A summary explanation of how to access and utilize the listserve is being reviewed and will be distributed in a few weeks. Co-chairs Doug Fox, Deborah Thorne and Berry Spears are presently discussing the compilation of a committee meeting presentation for the Winter Leadership Conference in December 2004 in Scottsdale, Ariz. Please contact one of them if you have any suggestions.
The committee met on Saturday, Dec. 6, 2003, in connection with the Winter Leadership Conference. The meeting was organized and moderated by Co-Chair Deborah Thorne and was well attended. Co-Chair Barry Spears also attended, but Doug Fox got stuck in a snowstorm in Pennsylvania.
The meeting began with a panel presentation by Unju Paik, Larry Lettig and Sandra Schirmang discussing various interests and issues arising during their participation on the K-Mart Unsecured Creditors Committee. It was a very informative and well-received presentation, generating discussion and questions on such issues as consignment, reclamation, the formation of multiple committees, the critical vendor motion and direct store delivery vendors.
After the panel presentation there were reports from various project leaders. Deborah Thorne reported on the progress of the Preference Defense Handbook, with Dave Wheeler agreeing to make a contribution concerning non-statutory defenses. There was also some discussion about alternatives to customary bankruptcy recovery efforts such as credit insurance and claims trading. If any of the members of the UTCC are interested in putting together a publication of "standard" critical vendor agreements, credit insurance forms (U.S. vs. European) and claims trading agreements, please contact Dave Wheeler (firstname.lastname@example.org).
There was also a great deal of discussion concerning committee growth primarily through attracting non-legal professionals. Suggestions included contacting the members of the Credit Research Foundation. The possibility of establishing a joint list serve with NACM members was also discussed.
The Ethics Committee and the Unsecured Trade Creditors Committee conducted a joint meeting; attendance for the program exceeded 75. The highlight of the meeting was a presentation entitled "Behind Closed Doors: The Ethics and Mechanics of Committee Formation and Selection of Professionals." The meeting was hosted by Richard M. Meth and Lynnette R. Warman, co-chairs of their respective committees. The panelists were Jay R. Indyke of Kronish, Lieb, Weiner & Hellman LLP (New York), Joseph E. Myers, Managing Director of Clear Thinking Group (Hillsborough, N.J.) and W. Clarkson McDow Jr., U.S. Trustee, Region 4 (Columbia, South Carolina). Rick Meth of Pitney, Hardin, Kipp & Szuch LLP (Morristown, N.J.), was the moderator. The panel explored in-depth such issues as the procedures for forming a committee, the fiduciary duty of committee members, the ethical constraints upon solicitation of committee members by professionals, contents of presentations to the committee by professionals and issues that can cause conflicts for committee members. A copy of the presentation materials can be obtained by contacting Rick Meth directly at email@example.com.
A second meeting was held at the regularly scheduled time to address business issues. This meeting was also well-attended, with about 30 people in attendance. The meeting began with reports from the various project leaders.
David Wheeler has taken the position of publications director and has finished his first issue. David and the two co-chairs of the committee will be working with the ABI to transform the newsletter to an electronic newsletter over the course of the next few months.
Doug Fox reported on behalf of Daren Brinkman regarding the proof of claim manual, and advised it should be ready to publish by spring 2003. He also reported on behalf of Dan Rallis' project, a manual on chapter 11 voting. Please contact him if you would like to help with that project. Deborah Thorne is heading a project on a manual on preference defenses.
The Unsecured Trade Creditors' Committee met on Saturday, Dec. 7, 2002, in connection with the Winter Leadership Conference. The meeting was well-attended, with more than 40 people in attendance.
The meeting began with reports from the various project leaders. There was a lively discussion about the status of an ad hoc committee, led by Douglas Fox and Bruce Nathan, regarding their attempts to promote more interaction and involvement between trade creditors and the UTC committee. Doug reported that he and Rod Wheeland are making arrangements for a reception to be held by the ABI UTCC and NACM-Oregon at the NACM Legislative Conference in March 2003, at the Crystal Gateway Marriott, located in Arlington, Va. Details of the conference and reception will be in the next UTCC newsletter.
Steven Kortanek has stepped down as publications director. David Wheeler will take on that position and will be in charge of editing four (4) issues in 2003‹one per quarter. Dave and the two co-chairs of the committee will be working with the ABI to transform the newsletter to an electronic newsletter over the course of the next 12 months.
Daren Brinkman discussed his project, a proof-of-claim manual, and advised it should be ready to publish by spring 2003. Dean Rallis discussed his project, a manual on chapter 11 voting, and asked for volunteers. Please contact him if you would like to help with that project. Deborah Thorne will be heading a new project, a manual on preference defenses. Please contact her if you are interested in that project.
Sandra Larratt-Smith (firstname.lastname@example.org) spoke at the meeting about claims trading. She was very informative about the claims trading process and provided thoughtful answers to the many questions posed to her.
The UTC meeting at the Spring Leadership meeting was a great success.
There were more than thirty (30) attendees who participated in the
meeting and posed a myriad of questions to the speaker, Frank Monico.
Frank spoke about the Delaware rules and customs regarding the
appointment and activities of creditors' committees in chapter 11 cases.
His remarks sparked a spirited discussion about various issues germane
to unsecured creditors, such as reclamation programs and trends,
critical vendor payments and committee formation issues.
The December meeting of the UTC was outstanding, both in terms of the number of people in attendance and the incredible response of those attending. At the meeting, the former co-chairs, Ms. Judy Thompson and Sandra Shirmang, were recognized and thanked for their past excellent leadership. Doug Fox and Lynnette Warman were introduced as the new co-chairs.
We then discussed existing projects. Bruce Nathan gave an update on the reclamation project and advised that the reclamation manual should be published shortly. The committee discussed the fact that this is an excellent publication and all of us should make a concerted effort to send our clients as many of the reclamation manuals as possible. David Wheeler gave an update on the preference project and has agreed to circulate the finished product for final edits by committee members and to submit it to the ABI review board. Lastly, we discussed the Ad Hoc Task Force on Trade Creditor Involvement; Bruce Nathan agreed to act as co-chair with Tom Grace on the project, and, Doug Fox agreed to join the team. If anyone would like to join this project, please contact Bruce Nathan.
As for new projects, the members agreed that expanding membership in the Committee by adding new trade members is the primary goal of the committee this year. To that end, a number of new projects have been launched.
Laura Portello has agreed to head the subcommittee to organize a cocktail reception at the NACM Legislative Conference. It is a wonderful opportunity to meet senior credit people. Please contact her at (213) 532-8772 x207 to join her team, or contact Doug Fox for information about attending the conference.
Daren Brinkman has agreed to chair a subcommittee to prepare a "hands-on" guide for creditors about proofs of claim and avoiding the common pitfalls. This is a great project. Contact Daren Brinkman if interested.
Finally, Dean Rallis has agreed to head a subcommittee that will prepare a "how-to" manual about the chapter 11 voting process. This should be well received by trade creditors. Please contact Dean Rallis if you are interested in getting involved in this project.
The next meeting of the UTC committee will be as part of a cocktail party in March at the NACM Legislative Conference in Washington, D.C., and will be during the late afternoon of March 9th, 2002. The following meeting of the committee will be at the ABI Annual Meeting April 18-21, 2002.
Thanks for getting the UTC Committee off to a great start for 2002!
Tom Grace presented the report of the Ad Hoc Task Force on Trade Creditor Involvement and offered several new ideas for ways to get National Association of Credit Managers (NACM) members and other trade creditors more involved with ABI and with our committee. Among these was a discussion of the new NACM newsletter format that is being used with a number of the larger NACM units. Mr. Grace suggested that members of the UTCC regularly contribute articles to that newsletter.
In Bruce Nathan's absence, Committee Co-chair Judy Thompson offered the report of the Reclamation Task Force and indicated that the work is complete on the Reclamation Manual and it is ready for final printing but is on hold until the impact of the new legislation is determined. There are certain provisions in the proposed legislation that would need to be incorporated in the manual prior to its printing.
Lynnette Warman, sub-chair of the Publications Committee, provided the report on publications and commented on the recent and upcoming issues of the committee newsletter. Members of the committee and credit managers, whether or not members of the committee, were invited to submit articles for publication. Ms. Warman explained that short practical articles were preferred. She also invited the same group to submit articles for Cracking the Code, the online practical-tips section of ABI World located at abiworld.org/talkback/.
David Wheeler provided an update on the Preference Handbook, which is going well. A draft has been completed and it is in the edit stage. There may need to be adjustments made when the new law is passed. We are hopeful the product will be ready for the December Winter Leadership Conference or shortly thereafter.
Gene Chikowski presented a program entitled "Unsecured Creditors In Bankruptcy Land: Bug or Windshield?...How to Avoid One and Become the Other." The program covered pre-bankruptcy planning, first-day orders (particularly as they affect critical vendors), avoidance litigation and the liquidating chapter 11 that leads the committee in a control position.
The next regular meeting of the UTCC will be at the Winter Leadership Conference, Nov. 29-Dec. 1, 2001.
The meeting was conducted by co-chairs Judy D. Thompson of Poyner & Spruill L.L.P. and Sandra Schirmang of Kraft Foods, Inc.
Congratulations and acknowledgment were given to Geoffrey Berman of Development Specialists, Inc., for completion of the publication, General Assignments for the Benefit of Creditors — A Practical Guide. Copies of the handbook were distributed to all participants at the ABI Winter Leadership Conference.
Bruce Nathan of Davidoff & Malito, L.L.P. reported on the reclamation handbook project. The manuscript for the reclamation handbook has been completed and submitted to the ABI Vice President for Publications, Rick Meth. It is anticipated that the handbook will be available for distribution during the first quarter of 2001 at the NACM Legislative Conference.
Lynnette Warman of Jenkins & Gilchrist was commended for her continuing good work in the area of committee publications and for the November 2000 issue of News & Views, the newsletter for the ABI Unsecured Trade Creditor Committee. A call was issued to all committee members and credit managers for articles for the next issue, which is anticipated to be published in January or February, 2001.
The 2001 National Association for Credit Managers’ Legislative Conference is scheduled for March 4-5, 2001. The Unsecured Trade Creditors Committee is working under the leadership of Joseph Bodoff of Bodoff & Associates to sponsor a social event. Jim Jenson of Northwest Hardwoods and Steve Darr of KPMG Pete Marwick are assisting Mr. Bodoff.
The preference subcommittee has completed the first draft of its manuscript for the preference handbook under the leadership of David Wheeler of Moore & Van Allen. A request was issued for persons who may be interested in assisting in editing the final version of the handbook which is targeted for publication in spring, hopefully in time for the ABI Annual Meeting in April or the NACM Credit Congress in May.
The continuing education program at our meeting was presented by Lawrence Ahern, III, of Gullett, Sanford, Robinson & Martin and Kim Martin Lewis of Dinsmore & Shohl. The program was titled "Current Issues of Interest on Unsecured Creditors" and covered recent case developments regarding payment of expenses (including attorney fee expenses) of members of creditors’ committees, consignment issues, reclamation and purchase money security interests. Copies of the materials are available from Mr. Ahern at email@example.com.
The next regular meeting of the UTCC will be at the annual meeting April 19-22, 2001 in Washington, D.C. For more information or to get involved in committee activities send an email to Judy Thompson (Poyner & Spruill L.L.P.) at firstname.lastname@example.org., or to Sandra Schirmang (Kraft Foods) at email@example.com. Contributions to the newsletter should be addressed to Lynnette Warman (Jenkins & Gilchrist) at firstname.lastname@example.org
The Unsecured Trade Creditors Committee met at the annual meeting on April 29, 2000 in Washington, D.C.
The business portion of the meeting included:
The next meeting of the UTCC will be at the mid-winter leadership conference November 30 to December 2, 2000 in Scottsdale, Ariz. For more information or to get involved in committee activities send an email to Sandra Schirmang (Kraft Foods) at email@example.com or to Judy Thompson (Poyner & Spruill) at firstname.lastname@example.org.
The Unsecured Trade Creditors Committee met on Dec. 4, 1999. The business portion of our meeting was abbreviated due to the excellent program by Lynnette Warman (Jenkins & Gilchrist, Dallas) and Mark Bossi (Thompson Coburn, St. Louis) titled, "Revisions to Article 9 Affecting Unsecured Trade Creditors." They reviewed the changes to Article 9 of the Uniform Commercial Code (UCC) that will impact secured and unsecured trade creditors, using a hypothetical example to walk us through a typical UCC transaction under the new Code. It was evident that we are all in for a confusing period of at least five years following the June 2001 effective date of the changes as we cope with the transition between the two systems.
On the business side, Geoffrey Berman (Development Specialists Inc., Los Angeles) advised that the Manual on Assignments for Benefit of Creditors should be published in time for the Annual Spring Meeting. Ms. Warman was congratulated for her excellent work on News and Views, the UTC Committee newsletter. She is working to get it on as many NACM web sites as possible. Sandra Schirmang (Kraft Foods Inc., Northfield, Ill.) announced that plans are well under way for a presentation by the committee to be included in the agenda for the NACM Legislative Conference in Washington in March. Bruce Nathan (Davidoff & Malito LLP, New York), Ms. Warman and Mr. Bossi will give the presentation on revised Article 9. Judy Thompson (Poyner & Spruill LLP, Charlotte, N.C.) updated the committee on the progress of the Preference Handbook project, which will explain preferences and the defenses and provide a summary of state preference laws as well.
Finally, a call was made for topics for the "Cracking the Code" Newsletter on ABI World (http://www.abiworld.org/talkback/). Anyone with ideas for a topic for this practically oriented, 750-word online newsletter should contact Ms. Thompson at email@example.com. The next committee meeting will be in conjunction with the NACM Legislative Conference in March.
Bruce Nathan presented an update of the activities of the Reclamation Task Force. The outline of the Reclamation Manual was expected to be done by mid-May for review and a rough draft will be completed by the fall.
Lynnette Warman reported on the Publications Subcommittee and distributed copies of the recently mailed committee newsletter. The next regularly scheduled issue is set for publication on October 1, but Warman indicated that it is possible to put out a summer issue if there is sufficient interest. There was a general call for articles for the committee newsletter and for the 1,000-word "Cracking the Code" online newsletter feature. It was suggested that an article on pre-packaged chapter 11 would be appropriate for the newsletter and that the committee needs to plan a special piece on the Revised Article 9 and its impact on the unsecured creditors in our publications during 2000.
Larry Ahern led a discussion regarding Uniform Commercial Code (UCC) issues, including a possible project on revised Article 9. It was suggested that the new Article 9 be placed on the ABI web page, or a link to it. It was also suggested that ABI post a list of states that have adopted revised Article 9. Revisions are apparently available on the web at http://www.UPenn.edu. It was also pointed out that Prof. Ray Warner has developed a list of the top 10 points you need to know about revised Article 9.
There was serious discussion regarding the NACM Legislative Conference scheduled for March 2000, and increasing the involvement of credit managers in the committee. Joe Bodoff pointed out that the key is to find out when each of the legislative conference meetings are scheduled, including the Government Affairs Committee meeting in particular, and then schedule our meeting around that one. He also suggested that we have a topic of genuine interest to the credit managers who will be attending the NACM Legislative Conference.
In the absence of Geoff Berman, ABI Vice President-Publications Richard Meth reported on the status of the Handbook on Assignments for the Benefit of Creditors. A draft of the handbook has been sent out for review and is currently with Mike Williamson.
There was a discussion regarding a two-part project that would include a survey of state preference laws and allowable defenses on the various states, and a preference handbook that would review the elements of preference law, the various defenses and how to calculate exposure.
Bradley Saxton of the Orlando office of Holland & Knight presented a program on assignments for the benefits of creditors. Copies of his presentation may be obtained by contacting him at firstname.lastname@example.org.
Thirty-five bankruptcy and credit professionals attended the meeting, and members gave reports on various projects. Lynnette Warman (Jenkens & Gilchrist; Dallas), editor of "News and Views," the committee newsletter, announced a new publication schedule to include newsletters in mid-January, mid-April, late October and possibly July if warranted.
Reclamation Task Force—Bruce Nathan (Kreindler & Relkin PC; New York) reported on the Task Force's progress. He said its work will result in an an article in the ABI Law Review on global reclamation programs that will explain the various strategies for handling reclamation claims that have occurred in large cases, and will show the various alternative ways the claims have been processed. In addition, he is working on a handbook on reclamation similar to the Creditors' Committee Manual that this committee produced a few years ago.
Credit/Sales Documentation—David Wheeler (Holmes & Thomson; Charleston, S.C.) has revised and expanded the materials that credit managers can use to obtain credit information on new accounts and document and sales transactions. You may obtain a copy of these by contacting him at (843) 724-1327 or e-mailing him at email@example.com.
Program—Steve Berman (Morse, Berman and Gomez; Tampa, Fla.) presented a program titled "Reclamation: How to Prove Your Goods are Still There!" He reviewed the requirements for reclamation and provided an excellent summary of the case law in the areas of reclamation demand, identification of goods, insolvency, possession of goods at time demand is received, floating liens and burden of proof. If you would like a copy of this five-page summary, please contact him at (813) 301-1000 or e-mail him at firstname.lastname@example.org.
Creditor Participation—An ad-hoc task force comprised of Tom Grace (Liddell Sapp; Dallas), Roseanne Matzat (Hahn & Hesson; New York), Ms. Warman and Mr. Wheeler was formed to identify issues and specific actions that ABI and the committee can take to increase the involvement of our credit manager members. Co-chair Judy D. Thompson (Poyner & Spruill; Charlotte, N.C.) outlined the prototype program included in the ABI Southeast Bankruptcy Workshop in 1998. That program expanded the traditional continuing education offerings that are aimed primarily at attorneys and included a creditors' "overlay" program, specifically aimed at non-attorneys, that addressed the issues facing consumer and business creditors. That overlay program will be continued at the 1999 ABI Southeast Bankruptcy Workshop, August 4-7, at the Ritz Carlton on Amelia Island, Fla.
ABI Publications—The committee needs authors to write articles of interest to unsecured trade creditors to be published in the ABI Journal's "Last in Line" column, and "Cracking the Code," ABI's newsletter on the Internet.