The ABI Northeast Bankruptcy Conference and the Northeast Consumer Forum, held at the Ocean Edge Resort in Brewster, MA, included a great lineup of hot topics and speakers. Over 400 attended the conferences and enjoyed a variety of programming on topics including cross-border issues, advocacy skills, a BAPCPA update, the mortgage crisis, hot topics in claims purchasing, and more! Among these great sessions were two sessions of interest to members of the committee, “Troubled Portfolio Companies” and “Hot Topics In Claims Purchasing and Trading.” Below are summaries for each session and relevant materials.
In “Troubled Portfolio Companies,” the panel focused on issues that private equity companies should be attuned to when a portfolio company is in serious financial distress. Key topics included fiduciary duties, dividend recapitalizations, equitable subordination, and recharacterization. Christine D. Lynch of Goulston & Storrs, PC in Boston moderated the panel which included Michael J. Epstein of CRG Partners in Boston, Douglas R. Gooding of Choate, Hall & Stewart LLP in Boston and Stephen Moeller-Sally of Ropes & Gray LLP in Boston. Included in the materials was an outline of risks and best practices in dividend recapitalizations by Ms. Lynch and Mr. Epstein, as well as a paper by Mr. Gooding and James B. Heffernan, both of Choate, Hall & Stewart LLP, on equitable subordination in troubled portfolio companies. Click on the links below to review the materials.
Dividend Recapitalizations: An Outline of Risks and Best Practices - Christine D. Lynch & Michael J. Epstein (pdf)
Troubled Portfolio Companies: Equitable Subordination or Recharacterization of “Debt” – Douglas R. Gooding & James B. Heffernan (pdf)
In “Hot Topics In Claims Purchasing And Trading,” the panel covered strategies and potential pitfalls on issues including due diligence, liquidating acquired portfolios, and the bankruptcy law as it pertains to preservation of the estate’s net operating losses. Victor G. Milione of Nixon Peabody LLP in Boston moderated the panel which included Jeanne P. Darcey of Edwards Angell Palmer & Dodge LLP in Boston, Christopher Moon of Merrill Lynch, Pierce Fenner & Smith in New York and Hon. Elizabeth S. Stong, U.S. Bankruptcy Court, Southern District of New York. Included in the materials was a paper by Mr. Milione and Travis J. Norton, both of Nixon Peabody LLP, entitled Governing Law Regarding Claims Trading In Bankruptcy. Also included was a paper by Ms. Darcey entitled Restrictions On Trading Claims In Bankruptcy: Preservation Of The Debtor’s NOLs. Click below to review each paper.
Governing Law Regarding Claims Trading In Bankruptcy – Victor G. Milione & Travis J. Norton (pdf)
Restrictions On Trading Claims In Bankruptcy: Preservation Of The Debtor’s NOLs – Jeanne P. Darcey (pdf)
The American Bankruptcy Institute Law Review, published twice a year by Thomson West, is among the most respected scholarly publications in the bankruptcy community. Free to ABI members, the ABI Law Review has the largest circulation of any bankruptcy law review. The Law Review is edited by top students at St. John's University School of Law under the direction of Prof. G. Ray Warner, an ABI director, former member of the ABI Executive Committee and the director of the LL.M. program at St. John's. The Spring 2008 issue contains seven articles and one LL.M. thesis on topics such as due process and nationwide service, trends in distressed debt investing, wage priorities in bankruptcy, valuation practice and Daubert, Delaware’s “irrelevance,” consumers’ post-discharge finances and non-assignable contracts in bankruptcy.
Of particular interest to the committee is the article entitled “Report to the American Bankruptcy Institute: Prevalence of Substantive Consolidation in Large Public Company Bankruptcies from 2000 to 2005,” written by William H. Widen, a professor at the University of Miami School of Law. His report highlights the importance of the substantive consolidation doctrine to large public company bankruptcies, pointing out that it is hard to gage the doctrine’s significance based merely upon published opinions, which often do not approve the procedure. The report measures the extent to which large public company reorganizations use the procedure and the degree to which negotiations take place in the shadow of the doctrine. The report reveals that the substantive consolidation “technique” is dominant in large public company bankruptcies. Please click below to read the full article.
Prevalence Of Substantive Consolidation In Large Public Company Bankruptcies From 2000 To 2005 - William H. Widen (pdf)
The Winter Leadership Conference will be held Dec. 4-6 in Tucson, AZ, at the Westin La Paloma. This year’s conference will feature another great group of sessions and speakers, as well as some top-notch entertainment! The committee’s session will be on Friday afternoon and a distinguished panel will discuss intercompany claims and issues such as: (i) whether corporate debtors need separate reorganization counsel because of intercompany claims; (ii) when do conflicts arise that would prohibit one counsel from representing all debtor entities; and (iii) whether the same conflicts exist for committee counsel if they exist for the committee.
Currently, the Member Relations Director position is available. Please contact one of your co-chairs to express your interest. Serving on a committee is the first step toward a greater leadership role in the association, in addition to providing excellent business development opportunities through member contact. For complete descriptions of each position click here.
