ABI is pleased to announce your 2008-2009 co-chairs, as well as the addition of five new leadership positions. These new positions are a result of your feedback regarding opportunities for involvement and advancement in the association.
Co-Chairs: H. Slayton Dabney, Jr.
Andrea Pincus
Education Directors: Tinamarie Feil
Hamid R. Rafatjoo
Listserve Moderator: Robb C. McWilliams
Membership Relations Director: AVAILABLE
Newsletter Editor: Sarah Beckett Boehm
Special Projects/Task Force Leader: Steven M. Berman
Click here for contact details for each position, in addition to position descriptions and instructions for expressing your interest in available positions.
Written by: John J. Monaghan
Holland & Knight LLP; Boston
The following article was included in the materials from the session, “Drafting Around The Stay: Swaps, Forward Contracts, Repurchase Agreements And The Future Of Pre-Petition Agreements In Bankruptcy" presented on Saturday, April 5th
at the ABI 2008 Annual Spring Meeting.
The limitations on avoidance powers set forth in §546 of the Bankruptcy Code include
provisions aimed at providing a safe harbor against avoidance of "settlement payments" made in connection with various financial industry transactions. Broadly stated, these provisions
preclude application of preference, strong arm or constructively fraudulent transfer theories to avoid "settlement payments" made in connection with securities transactions involving certain enumerated market participants. While many of the reported decisions regarding these transactions emanate from the fraudulent transfer challenges to leveraged buyouts in the 90's, the increasing prevalence of complex financial transactions to fund the operations of even middle market companies has brought new and increased relevance to the Bankruptcy Code's protection
of settlement payments.
Read the full article. (pdf)
Written by: Edwin E. Smith
Bingham McCutchen LLP; Boston
The following article was included in the materials from the session, “Drafting Around The Stay: Swaps, Forward Contracts, Repurchase Agreements And The Future Of Pre-Petition Agreements In Bankruptcy" presented on Saturday, April 5th at the ABI 2008 Annual Spring Meeting.
The Bankruptcy Code has addressed so-called financial contracts by giving them special
treatment under the Bankruptcy Code. Financial contracts consist of securities contracts,
commodity and forward contracts, repurchase agreements and swap agreements. The special
treatment has been, in the event of a debtor's bankruptcy, to immunize non-debtor counterparties to financial contracts with the debtor from the automatic stay, ipso facto clauses and most
avoidance actions.
Read the full article. (pdf)
Annual Spring Meeting Committee Session Materials
The Annual Spring Meeting held April 3-6, 2008, attracted more than 1,100 insolvency professionals from around the world. The conference featured some excellent educational sessions in addition to featured speakers Justice Samuel A. Alito Jr. and Senator Sheldon Whitehouse (D-R.I.).
Below are links to two articles from the committee session, "Bankruptcy Trustee Suits against Former Counsel for Bankrupt Public Companies," led by the following panel of speakers: Michael Venditto, Reed Smith LLP, New York; Albert Togut, Togut Segal & Segal LLP, New York; and Jeffrey Rich, K&L Gates LLP, New York.
Click here to read “Standing And The In Pari Delicto Defense.” (pdf)
Click here to read “Suits Against Counsel By Post-Confirmation Trusts.” (pdf)
Upcoming 2008 Winter Leadership Conference Committee Session
The 20th Annual Winter Leadership Conference will be held from Dec. 4-6, in Tucson, AZ. Preparations for our committee's educational session are already under way. We would welcome your input on possible topics for the upcoming session. Please submit your suggestions to Education Directors Tinamarie Feil and Hamid R. Rafatjoo.
