Bankruptcy Litigation Committee

ABI Committee News

The Right to Trial by Jury in Bankruptcy Cases: Waiver and Enforceability

Your client is getting ready to sign an agreement with another party. Maybe it is a loan document. Maybe it is an offer to purchase. Somewhere near the end of the agreement, you see that there is bold, capitalized language indicating that by signing the agreement, your client will waive its right to a trial by jury. It is standard in nearly all contracts so you do not even bat an eye about advising your client to sign. After all, what are the benefits of having your case heard by a jury? Jury trials take longer, and juries are unpredictable.

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ABIís 26th Annual Spring Meeting: Committee Agenda

ABI's 26th Annual Spring Meeting, the networking and CLE event of 2008, will be held April 3-6 at Washington, D.C.'s Renaissance Hotel in the Nation's Capital! Join us during cherry blossom season for exciting and informative sessions, including a luncheon keynote by Supreme Court Justice Samuel A. Alito, Jr.

The Bankruptcy Litigation committee will meet jointly with the Unsecured Trade Creditors committee on Saturday, April 5, from 8:00 to 9:30 a.m. to discuss, “An Examination of Preference Litigation Run Amok.”

The program is on the problem of preferences, which have become the bane of every credit department.  After working hard to get the payment in, two years later the preference complaint appears in the mail.  Congress may have intended preferences to "level the playing field" so that all unsecured creditors could share equally in a distribution from the debtor's estate.  In reality, however, preference recoveries often do not benefit unsecured creditors and often seem to benefit only the professionals representing the creditors' trust or the trustee.  This panel will look at preference litigation run amok - examining several different cases in which hundreds of preference cases were pursued and the methods by which the plaintiffs sought recovery.  Is there a way for preference recoveries to be pursued without creating a log jam in bankruptcy courts?  Is there a way to efficiently examine defenses prior to filing cases?  This will be a fascinating program, addressing a serious problem encountered throughout the nation.

Recap of the Winter Leadership Conference

At the Winter Leadership Conference, the Bankruptcy Litigation Committee and the Commercial Fraud Task Force presented a joint program in the form of a mock hearing on a motion to appoint a trustee. The co-chair of the Litigation Committee, Judge Barry Russell, presided, and kept all attendees (and presenters) in suspense until the conclusion of the hearing. Dramatic testimony was offered by Cyrus Pardiwala, playing the CPA for the moving party seeking the trustee and also the evil twin CPA for the Debtor seeking to remain in possession. The case was loosely based on New Century Financial, and the presentation was well-received by all attendees.