2013 Northeast Bankruptcy Conference

Thursday | Friday | Saturday | Sunday

Thursday, July 11

9:00 a.m.-5:00 p.m.

ABC Exams

2:00 p.m.

ABI Registration Desk and Exhibit Hall Open

6:00-8:00 p.m.

Opening Reception

Sponsored by AlixPartners LLP, Greenberg Traurig, LLP

Friday, July 12

7:30-8:30 a.m.

Registration and Continental Breakfast

Sponsored by Gavin/Solmonese and Pepper Hamilton LLP

8:30-10:00 a.m.

Concurrent Sessions (5)

Crisis Communications--Both Legally Required and Strategically Wise

When companies file Chapter 11, they communicate on a number of fronts and through a number of means. Pleadings are fashioned to convey a particular message to the court, creditors and anybody else who might read them. Public companies have certain mandatory disclosures in the form of 8Ks. More importantly, and more interestingly, communications strategies are undertaken by debtors to inform but reassure their customers, vendors and the public. This program will be led by experts in the field of communications in the face of a bankruptcy. Issues include securities law compliance prepetition, avoiding improper plan solicitation, the role of communications professionals in messaging even in filed documents and in case proceedings, such as the first day declaration and at the 341 meeting and, post-petition when court approval is necessary or advisable.

Michael Freitag, Moderator

Joele Frank, Wilkinson Brimmer Katcher; New York

Megan N. Gates

Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, PC; Boston

Hon. Robert E. Gerber

U.S. Bankruptcy Court (S.D.N.Y.); New York

Damian S. Schaible

Davis Polk & Wardwell LLP; New York

Mike Spector

Wall Street Journal; New York

Debtor Migration--Intercontinental, Inter-District and Back

Recent cases have evidenced one form of jurisdictional migration and two forms of venue migration. As to the jurisdictional migration, international companies with virtually no U.S. connection seek to, and generally succeed at, establishing a sufficient U.S. presence to file a Chapter 11 in the United States because, if there are reorganization proceedings in the countries that are their COMIs, they are perceived as inadequate (Marco Polo, Omega, GenMar). What has worked for non-U.S. companies seeking to invoke U.S. Bankruptcy Court jurisdiction, and what is the legal authority? Venue migration is nothing new--debtors file in their place of incorporation rather than the venue in which their headquarters or primary operations are. What are the factors that go into that decision? Finally, sometimes debtors are forced to migrate back. What factors have resulted in a change of venue? (Houghton Mifflin and Patriot Coal).

Jeanne P. Darcey, Moderator

Sullivan & Worcester LLP; Boston

Hon. J. Michael Deasy (ret.)

U.S. Bankruptcy Court (D. N.H.); Manchester

Daniel M. Glosband

Goodwin Procter LLP; Boston

Francisco Vazquez

Chadbourne & Parke LLP; New York

Kenneth S. Leonetti

Foley Hoag LLP; Boston

The Ethics of Networking--Social and Otherwise, and Other Ethical Issues of the Day

This program will address ethical issues unique to the practice of bankruptcy law. With the increasing use of social networking sites, such as Facebook and Linked In, what ethical issues arise? What constitutes advertising and, therefore, under ethical restrictions must be disclosed as such? What constitutes client solicitation and is therefore prohibited? In related topics, how far can an attorney go in attempting to obtain committee representation, and what crosses the ethical boundaries? Finally, what duties do lawyers owe to the court and to the profession if they learn of somebody's crossing the line in any of those activities? Does it matter how they learn of them ("Facebook stalking")?

Elizabeth J. Austin, Moderator

Pullman & Comley, LLC; Bridgeport, Ct.

John L. Whitlock

Edwards Wildman Palmer LLP; Boston

Gina M. Barbieri

Mirick O'Connell LLP; Worcester, Ma.

William K. Harrington

United States Trustee; Boston

Hon. Brian K. Tester

U.S. Bankruptcy Court (D. P.R.); San Juan

The Ebbs and Flows of a Chapter 11 War: the Planet Fitness Reorganization, a Case Study

This program will focus on the legal and business challenges that faced counsel to a debtor, secured lenders and franchisor in a hotly litigated, modest-sized Chapter 11 in Massachusetts involving a two-tiered ownership of six Planet Fitness franchisees. Filed in 2010 and ending with a confirmed plan in 2012, the case involved shifting allegiances, successive plans, alternative considerations of an asset sale vs a change in equity ownership depending on litigation with the franchisor, and a plethora of challenging issues, including (i) the contested settlement of litigation challenges to one secured creditor, (ii) the potential cram-down of a second secured creditor, (iii) the treatment of leases intended as security, (iv) disputed feasibility, (v) the ability to assume (and assign) the franchise agreements, (vi) whether the franchisor’s right of first refusal was enforceable, (vii) whether de-branding is a real alternative to a continuation of the franchise, (viii) whether the franchisor’s rights were waived during the case, and (ix) claims estimation. See In re Chicago Investments, LLC, 470 B.R. 32 (Bankr. D. Mass. 2012).

Elisa Sartori, Moderator

Mesirow Financial Consulting, LLC; Boston

Charles R. Bennett, Jr.

Murphy & King, PC; Boston

Hon. Enrique S. Lamoutte

U.S. Bankruptcy Court (D. P.R.); San Juan

John J. Monaghan

Holland & Knight LLP; Boston

Richard C. Pedone

Nixon Peabody LLP; Boston

Issues in Individual Chapter 11 Cases

Individual chapter 11 cases pose a number of thorny legal and practical problems for the bankruptcy practitioner. While individual chapter 11 cases contain many elements of corporate chapter 11 and chapter 13 cases, they do not fit comfortably in either chapter. Following the enactment of BAPCPA, courts have struggled to strike the appropriate balance between the provisions of the Bankruptcy Code intended for corporations and those intended for human beings. The result is substantial uncertainty for debtors and creditors alike. This session will explore: Does the absolute priority rule apply to individual chapter 11 debtors? May creditors commence an involuntary chapter 11 case against an individual? May individual chapter 11 debtors pay their living expenses in the ordinary course of business, or is notice and a hearing required? What are the advantages and disadvantages for debtors and creditors in an individual chapter 11 case as compared to a corporate chapter 11 case or a chapter 13 case?

Jennifer Hertz, Moderator

Office of U.S. Trustee; Boston

David P. Azarian

Azarian Law Office, PLLC; Dover, NH

Hon. William C. Hillman

U.S. Bankruptcy Court (D. Mass.); Boston

Keith Lowey

Verdolino & Lowey, PC; Foxboro, Ma.

Douglas S. Skalka

Neubert, Pepe & Monteith, PC; New Haven, Ct.

9:00 a.m.-5:00 p. m.

Optional Event

Second Beach Shuttle Service

Sponsored by Candlewood Partners, LLC

10:30 a.m.-12:00 noon

Concurrent Sessions (4)

Deal Documents: The Transactional Side of a 363 Sale

Unlike most 363 sale programs, this program will not involve the aspects of the sale that are the focus of court proceedings, but will take an in-depth look at the transaction documents that get the deal done. The primary document discussed with be the APA-what does that document need to accomplish, what provisions should be included, how do APAs used in 363 sales differ from other APAs, what to do about reps and warranties and why and, what are the points of negotiation? Experienced deal-side practitioners will identify the elements of an asset purchase agreement that are important, and the respective views of the buyer and the seller as to those provisions.

Jennifer V. Doran, Moderator

Hinckley, Allen & Snyder LLP; Boston

Dennis L. Jenkins

WilmerHale; Boston

Christopher R. Mirick

Pillsbury Winthrop Shaw Pittman LLP; New York

John T. Morrier

Casner & Edwards, LLP; Boston

Hon. Joel B. Rosenthal (Ret.)

U.S. Bankruptcy Court (E.D. Mass.); Natick

The Morning After: Coping with the Consequences of the Failed LBO/Leveraged Recap Transaction

Was the deal ill-conceived? Was the borrower undercapitalized/overleveraged? Was it the victim of intervening circumstances and unforeseeable events? In today’s covenant-light world, more financial players and operating companies’ owners are availing themselves of relatively accessible credit facilities to cash in on the perceived value of entities with attractive balance sheets. But what happens if the company later fails and ends up in bankruptcy? Are redeeming shareholders really supposed to be the guarantors of the deal’s success?

Marc S. Kirschner, Moderator

Kirschner Consulting Company; New York

Michael Fencer

Jager Smith PC; Boston

Michael J. Epstein

Deloitte CRG; Boston

Hon. James B. Haines, Jr.

U.S. Bankruptcy Court (D. Maine); Portland

Lisa M. Kresge

Brennan, Recupero, Cascione, Scungio & McAllister, LLP; Providence, R.I.

William K. Snyder

Deloitte CRG; Boston

E&O and D&O

This panel will first review the scope and types of coverage actually found in a typical E&O Policy and D&O Policy. Second, the Panel will discuss how claims are made under these policies with emphasis on how to assert or plead a claim so as to preserve coverage. Third, the Panel will discuss the law governing the treatment of such policies as “property of the estate” and finally, they will review the treatment and possible priority of claims that are asserted and adjudicated against the Debtor prepetition.

Thomas S. Vangel, Moderator

Murtha Cullina LLP; Boston

William S. Gannon

William S. Gannon, PLLC; Manchester, N.H.

Hon. Edward A. Godoy

U.S. Bankruptcy Court (D. P.R.); San Juan

Gregory O. Kaden

Goulston & Storrs; Boston

Judith A. Kokinda

Albert Risk Management Consultants; Needham, Ma.

The Art and Styles of Bankruptcy Negotiations

“Getting to Yes” in the language of the Fisher and Ury book, has become part of the common lexicon. This program will focus on negotiation techniques in the context of a bankruptcy. After an analysis of negotiation techniques applicable to the world of insolvency, experienced practitioners will relay war stories and examples of tactics that have worked, and those that have not.

George Marcus, Moderator

Marcus, Clegg & Mistretta, P.A.; Portland, Me.

Judith Elkin

Haynes and Boone, LLP; New York

Douglas R. Gooding

Choate, Hall & Stewart LLP; Boston

Hon. Bruce A. Harwood

U.S. Bankruptcy Court (D. N.H.); Manchester

Cynthia Romano

PCS, LLC; Boston

Optional Events

1:00 p.m.

Golf Tournament at Newport National Country Club

Sponsored by BlumShapiro, Finn Dixon & Herling LLP, Neubert, Pepe & Monteith, PC, Pullman & Comely LLC, Reid and Riege, PC, Updike, Kelly & Spellacy, PC and Zeisler & Zeisler, PC

Tennis Tournament

Sponsored by Mesirow Financial Consulting, LLC, Parker & Associates and Raftery Law Offices

Tour de ABI

Sponsored by PCS, LLC and Sheehan, Phinney, Bass + Green

Sport Fishing

Sponsored by Murphy & King, PC and Seyfarth Shaw

Sailing Regatta

Sponsored by Argus Management Company, Gordon Brothers Group LLC and Verdolino & Lowey, PC

6:00-7:30 p.m.

Friday Cocktail Reception

Sponsored by Duane Morris LLP and Salus Capital Partners

Friday Cocktail Reception Entertainment