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Meetings & Events

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:

  1. 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?
  2. Preferences—ordinary course, timing of payment, venue, small preferences;
  3. 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?;
  4. The New Small Business Chapter 11—Fast Track and Increased Reporting Requirements;
  5. 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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