Committee Agendas
Asset Sales
Saturday, Dec. 3, 9:30–11:00 a.m.
This program will focus on the impact of the BAPCPA on §363
Sales. The program will be led by:
- John C. “Kit” Weitnauer of Alston & Bird LLP in
Atlanta
- Robert Brady of Young Conaway Stargatt & Taylor LLP in
Wilmington, Del. and
- Jeffrey Levitan of Proskauer Rose LLP in New York.
The program will focus on current §363 practices and provide
insight, guidance and other thoughts on how such practices may change as
a result of the recent amendments to the Code.
Bankruptcy Litigation/Financial
Advisors/Professional Compensation
Saturday, Dec. 3, 9:30–11:00 a.m.
Saturday, Dec. 3, 11:15 a.m.–12:45 p.m.
These three committees will jointly present a mock trial of an
objection to final professional fees and a program on changes important
to our committees under the new law. (Presented in two parts.)
Business Reorganization/Investment Banking
Friday, Dec. 2, 3:45–5:15 p.m.
These two committees will present a joint program, “Unique
Issues in Gaming, Hospitality and Entertainment Venue Reorganization
Cases.” The panel will focus on the unique problems that arise in
casino, hotel, theme park and related companies’ chapter 11 cases.
The panel will discuss how to address the special problems that arise in
these cases, such as first-day orders, dealing with regulators, use of
cash collateral, sales of assets, plan content and confirmation.
Panelists will draw on the wealth of their experiences in such cases to
suggest practical solutions to the problems presented, as well as to
draw lessons from these cases applicable to other businesses and
industry groups.
Commercial Fraud Task Force
Friday, Dec. 2, 9:30–11:00 a.m.
Our
discussion on "Zero Tolerance for Commercial Bankruptcy Fraud"
is about you the BAPCPA and how it clearly evidences zero tolerance
for
fraud and criminal conduct.
Introduction - Zero Tolerance
The BAPCPA clearly evidences zero tolerance for fraud and criminal
conduct.
Debtors and debtors counsel should take no solace from the past.
Chronicle on the Frauds -
Three years after enacting "The Corporate and Criminal Fraud
Accountability
Act of 2002 ("The Act") the spectacular displays of accounting and
bankruptcy fraud continue.
Impact of § 1104(e) -
The new § 1104(e) provides an opportunity for creditors to have a
greater
impact on the course of a Chapter 11 case. When creditors
possess enough
evidence to convince the United States Trustee that there are
"reasonable
grounds" to suspect fraud and wrongdoing the issue must be brought
before
the bankruptcy court, which may appoint a trustee or even convert the
case
to one under Chapter 7.
Impact of § 1112(b) -
Under the new § 1112(b), if there is evidence of gross
mismanagement, the
court must convert or dismiss the case unless such relief is not in
the best
interests of creditors and the estate.
The Insolvent Public Company -
Regardless of the accounting audits, SEC investigations, The Act, and
several prosecutions, the accounting and bankruptcy frauds never
stopped
after Enron and WorldCom.
The Insolvent Non-Public Company -
Creditors need to ask themselves, what they expect regarding the
likelihood
of accounting and bankruptcy fraud for commercial debtors that are
not
public companies.
ABC, § 303 and the Charlatan Beware -
The days of utilizing the assignment for the benefit of creditors
("ABC")
provisions under state laws as the preferred escape path for the
non-public
commercial debtor and insiders who need to slip away into the night,
and
where the attorney fees are not controlled, provided the charlatan can
successfully escape the creditors reach, may be ending.
What Creditors Should Expect -
The new Code sections provide new opportunities for the appointed
trustee to
do a more thorough investigation of a debtor. The trustee will
promptly
determine who has the electronic books and records and financial
information.
Creditors should take an active role in the Chapter 11
case when the
creditor suspects that the debtor and its principals have been less
than
honest and immediately contact the U.S. Trustee.
Consumer Bankruptcy/Ethics
Friday, Dec. 2, 3:45–5:15 p.m.
These two committees will present a joint program, “My Practice
Will Go On… or Will It?—Ethical and Other Challenges for
Consumer Bankruptcy Case Practice Under the 2005 BAPCPA.” This
timely program will address the various ethical issues that arise in
consumer bankruptcy cases and the new challenges posed by the 2005
amendments to the Bankruptcy Code. The panel, which will include debtor
and creditor counsel as well as a representative of the Office of the
U.S. Trustee, will discuss various present practices of counsel, new
approaches to old issues, and questions raised by the new consumer
provisions.
Finance and Banking
Friday, Dec. 2, 9:30–11:00 a.m.
The committee will discuss the recent explosion of second lien
lending and the growth of the bankruptcy provisions contained in the
intercreditor agreements that accompany most second lien loan
transactions. So what happens when these provisions are tested in a
bankruptcy case? The panel will discuss whether the business reality of
these provisions, negotiated between first and second lien lenders,
lines up with the practical realities of whether the commonly negotiated
for provisions are even enforceable in a bankruptcy. The presenters
are:
- Jo Ann Brighton, Kennedy Covington Lobdell & Hickman LLP,
Charlotte, N.C.
- Hon. Judith Fitzgerald, U.S. Bankruptcy Court (W.D. Pa.),
Pittsburgh, and
- Mark N. Berman, Nixon Peabody LLP, Boston.
International/ADR
Friday, Dec. 2, 9:30–11:00 a.m.
International alternative dispute resolution and the new chapter 15:
choosing the law, the place and your destiny.
Legislation
Friday, Dec. 2, 9:30–11:00 a.m.
The committee program will consider the early implementation issues
surrounding the effective date of BAPCPA, including the rules process,
U.S. Trustee practices and court procedures.
Public Companies and Claims Trading
Friday, Dec. 2, 3:45–5:15 p.m.
The committee program will address whether public companies in
bankruptcy should emerge from chapter 11 as public reporting companies
or should reorganize and emerge as deregistered companies. Regulatory,
legal and practical issues will be considered. Andrea Pincus and Gloria
Frank (Anderson Kill & Olick PC) will present with a representative
from the SEC, as well as a distressed investor/lender who takes control
positions in chapter 11 cases, and an investment banker/turnaround
expert.
Uniform Commercial Code
Saturday, Dec. 3, 9:30–11:00 a.m.
The committee will present a panel program on “The Intersection
of UCC Article 2A and the Bankruptcy Code.” The panel will discuss
various aspects of Article 2A that commonly arise in bankruptcy
proceedings, including true vs. financing lease issues, the ability to
assert defenses against finance lessors and the protection and recovery
of leased property in bankruptcy cases.
Unsecured Trade Creditors
Saturday, Dec. 3, 11:15 a.m.–12:45 p.m.
The Unsecured Trade Creditors Committee will hold a forum on the
changes to the Bankruptcy Code which will seriously impact the rights of
unsecured creditors in Chapter 11 cases filed after October 17th. The
room will be setup for a conducive discussion with give and take among
all attending. The discussion will focus specifically on:
- Committees—problems inherent in the new disclosure and
solicitation of comments requirements, who is eligible to sit on a
committee after reclaiming creditors become administrative claim
holders?
- Preferences—ordinary course, timing of payment, venue, small
preferences;
- Reclamation and the New Administrative Expense Claim For Suppliers
of Goods—carveouts, constitutional issues, what happened to
suppliers of services, have they been denied due process?;
- The New Small Business Chapter 11—Fast Track and Increased
Reporting Requirements;
- New Limits on KERPS—Will They Work?
Young and New Members
Thursday, Dec. 1, 4:30–5:30 p.m.
Young and New Members Committee will present a discussion on
evidentiary issues that have come to the forefront during the new (and
young) millennium. Issues to be discussed will include the use of
electronic evidence, privilege and admissibility issues regarding
e-mail, text messages and other high-tech issues. A program designed to
help professionals adjust to everchanging technology, it is a must
attend for those technologically savvy professionals, and those not so
savvy as well.
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