Bankruptcy Litigation Committee

ABI Committee News


Confidentiality in Chapter 11 Cases

In a recent case, a bankruptcy court approved the following provision in a confidentiality agreement:

Designation of Nonconfidential. For the avoidance of doubt, all information disclosed to the receiving parties under this confidentiality agreement, whether oral or in written form, shall be deemed confidential information unless specifically identified in writing as “nonconfidential.”

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The Attorney-Client Privilege Within Corporate Families: Learning from Teleglobe

In Teleglobe USA Inc. v. BCE, Inc. (In re Teleglobe Comm’ns Corp.), 493 F.3d 345 (3d Cir. 2007), the Third Circuit addressed in detail Delaware law concerning the attorney-client privilege in the context of affiliated corporations. The underlying litigation involved a familiar situation—one where a dispute arose between once-affiliated corporations, thus putting their pre-dispute dealings under a microscope and opening up the possibility of discovery of predispute communications with counsel. According to the Third Circuit, the privilege is not lost merely because the affiliates use the same counsel on unrelated matters. Rather, the adverse litigation exception must be analyzed in light of the entities involved in the joint representation and the scope of that representation. The Teleglobe decision addresses the discoverability of documents in this context, and in so doing highlights important considerations for counsel involved with advising entities within a corporate family.

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Recent Amendments to the Federal Rules of Bankruptcy Procedure

On Dec. 1, 2007, various amendments (the amendments) to the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules) became effective, including the creation of several new rules. Among the significant changes of which practitioners should be aware, are (1) limitations on the relief that may be granted in the first 20 days of a case, absent a showing of “immediate and irreparable harm,” (2) restrictions on the procedure and nature of omnibus claim objections, including the type of relief that may be demanded, (3) restrictions on the procedure and nature of omnibus motions to assume or reject executory contracts and unexpired leases and (4) more extensive notice and disclosure requirements for approval of agreements relating to, among others, the automatic stay, use of cash collateral and obtaining credit.

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Ex Parte Contact With Debtor’s Former Employees

You are defending a client in a preference action, and the client tells you that its main contact at the pre-petition debtor was Bob Jones, the head of purchasing. Mr. Jones left the debtor before the petition filing, but your client knows how to contact him. Your discussions with your client suggest that Mr. Jones may provide helpful testimony on “the ordinary course of business” and other defenses.

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ABI's Annual Spring Meeting: Committee Educational Session

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.